On October 16, 2014, the Sixth Circuit Court of Appeals of decided the Cass v. City of Dayton, et al. [i], in which they found that an officer acted reasonably under the Fourth Amendment when he fired upon a vehicle, killing the passenger. The relevant facts of Cass, taken directly from the case, are as follows:
This case arises out of a May 16, 2008, “buy-bust” operation orchestrated by Detective James Mullins of the Dayton Police Department Special Investigations Division Drug Unit. The operation was based on information received from a confidential informant, who was to purchase an ounce of crack cocaine from Robert Moore.
That evening, Mullins briefed the following team members on the operation: Sergeant Mark Spiers, Sergeant Brian Johns, Detective David House, Detective Keith Coberly, Detective Dennis Murphy, Detective Doug Hall, Detective Joe St. Clair, Detective Tommy Harshman, Officer Mark Ponichtera, Officer Ron Velez, and Officer Tom Oney. Mullins advised the team that the informant had ordered an ounce of crack cocaine, that Moore was a known drug dealer, and that Moore was known to be armed with a gun. Mullins explained that it was to be a two-part operation. The first part called for officers to arrest Moore following a traffic stop. If that was unsuccessful, Mullins would take the informant to the Econo Lodge on Edwin C. Moses Blvd. where the officers would arrest Moore after he sold the crack cocaine to the informant. Mullins advised that the team was to move in and “take down” Moore once the informant gave a visual signal to confirm that Moore was actually there to make the deal. The first part of the plan was unsuccessful so the officers turned to the second.
The Dayton Econo Lodge is a U-shaped building with an overhang that juts out along the east side. It faces Edwin C. Moses, and an access road runs between that street and the hotel. The road provides access to a McDonald’s (to the west of the Econo Lodge), a Wendy’s (to the east of the Econo Lodge), and a BP gas station (further to the east of the Econo Lodge). Detective House arrived in the vicinity of the motel at approximately 7:15 pm in an unmarked City of Dayton vehicle. After twice moving his car, House parked near the McDonald’s drive-through to the west of the Econo Lodge with a view of the informant.
Not long after House parked, Detective Knight came on the radio and informed the team that Moore was arriving in a blue Ford Taurus and that there were three or four occupants in the vehicle. Shortly thereafter, the Taurus stopped under the overhang and made contact with the informant. Satisfied that Moore was there to complete the deal, the informant made the signal and then turned to walk toward the hotel. Mullins instructed the team to “move in.” The plan was to surround the Taurus while Moore was still in front of the Econo Lodge waiting for the informant to return.
It was at this point that the plan went awry and the situation began to escalate. Instead of waiting for the informant, the Taurus drove through the Econo Lodge parking lot at “normal speed,” westbound, in the direction of House and the McDonald’s. Believing that if he continued with the original plan the vehicle would simply drive around him, House positioned his car in the exit that led from the Econo Lodge parking lot onto Edwin C. Moses. After partially blocking the exit, House got out of his vehicle and walked toward the Taurus as it came to a stop in front of him. At about the same time, Detective St. Clair, with Sergeant Johns, parked alongside his car, leaving about one car’s length between the two. Because the signal had been given, House believed that the other detectives would converge on the Taurus.
The Taurus came to a stop approximately 30 feet from House’s vehicle, giving House a clear view of the driver and passenger and the driver a clear view of him. House, wearing his badge and his Dayton Police utility vest with “Police” written in reflective lettering, approached the Taurus from the front with his gun drawn, yelling “Dayton Police. Stop the car.” St. Clair did the same. When House was approximately ten feet from the stopped Taurus, the driver of the car, later identified as Charles Stargell, “punched the gas” and accelerated. House ran to the left. Realizing he could not avoid being hit, House put his hands on the hood of the Taurus and jumped in the air to ensure that the car would not drive over his body. The Taurus struck House in the right leg as he rolled across the hood to the passenger side of the vehicle. The impact carried House in the direction from which he came, and he landed facing the same direction as the Taurus, which continued to accelerate.
Almost immediately after the car struck House, it struck St. Clair in the hand, prompting him to discharge his weapon. At that point, House did not know where St. Clair was or even that St. Clair had been the one to fire the shot. Nevertheless, based on the fact that House had last seen St. Clair behind him, House believed that St. Clair had fired the shot and had done so in self-defense. In fact, St. Clair was on the opposite side of the vehicle near the rear driver’s-side door and testified that he discharged his weapon accidentally.
Within a matter of seconds after being hit, House turned to the left, in close proximity to the passenger-side front window, looked through the sight on his gun at the driver of the Taurus, and fired a single shot. House testified that the only person he could see through the sight was the driver, Stargell; he did not see the person in the front passenger seat. He testified that he took the shot in the belief that he was protecting St. Clair, Johns, Detective Murphy, and Officer Ponichtera, as well as officers and civilians who might have been seriously injured had the car continued on. The bullet struck and killed Derrick Jordan, the front-seat passenger. The Taurus continued between House’s and St. Clair’s cars, through the McDonald’s parking lot, eventually crashing into a tree.
The City of Dayton Police Department charged House and St. Clair with two violations of the City’s firearms policy. General Order 3.03-5, Use of Firearms, provides that “An officer will not discharge firearms from or at a moving vehicle unless they reasonably believe that such an action is in defense of human life.” Subsection (a) provides that “Officers must use tactical positioning of their vehicles and tactical vehicle approaches in order to minimize the danger presented by occupied vehicles.” Subsection (b) provides that “Officers must not deliberately place themselves in the path of a moving vehicle. An officer will attempt to move from the path of the motor vehicle and/or seek cover when possible.” The two officers were found not guilty of violating subsection (a) and guilty of violating subsection (b), presumably for approaching the Taurus from the front. House was given a 24-hour suspension. [ii]
Cass, the administrator of Jordan’s estate, filed suit against the City of Dayton, the Dayton Police Department, and Detective House in federal court and alleged that House violated Jordan’s Fourth Amendment rights when he used deadly force. The district court held the officer’s use of force was not objectively unreasonable, and as such, the officer did not violate Jordan’s Fourth Amendment rights. Summary judgment was awarded to all defendants. Cass appealed to the Sixth Circuit Court of Appeals.
At the outset, the court examined the legal standard for officers using force against suspects. The court stated:
The Fourth Amendment’s prohibition against unreasonable seizures prohibits the use of excessive force against free citizens. Id. (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The test is one of objective reasonableness: “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. We assess “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,” id. (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)), among other case-specific factors. See Ciminillo v. Streicher, 434 F.3d 466, 467 (6th Cir. 2006). In short, we ask whether the officer’s use of force was objectively reasonable in light of the totality of the circumstances as they would have appeared to a “reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
Tennessee v. Garner provides the starting point for assessing the use of deadly force against fleeing felony suspects. There, the Supreme Court held that the Fourth Amendment does not permit a police officer to “seize an unarmed, nondangerous suspect by shooting him dead.” 471 U.S. at 11. At the same time, “[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.” Id. [iii] [emphasis added]
The court noted that the above rules apply under the Fourth Amendment, even though Jordan, the passenger, was not the intended target of House’s bullet.
Further, the court examined specific case law that addresses the constitutionality of shooting at moving vehicles. The court stated:
[T]he critical question is typically whether the officer has “reason to believe that the [fleeing] car presents an imminent danger” to “officers and members of the public in the area.” Smith v. Cupp, 430 F. 3d 766, 775 (6th Cir. 2005). An officer is justified in using deadly force against “a driver who objectively appears ready to drive into an officer or bystander with his car.” Hermiz v. City of Southfield, 484 F. App’x 13, 16 (6th Cir. 2012) (citing Brosseau v. Haugen, 543 U.S. 194, 197-200 (2004)). But, as a general matter, an officer may not use deadly force “once the car moves away, leaving the officer and bystanders in a position of safety.” Id.; see also, e.g., Murray-Ruhl v. Passinault, 246 F. App’x 338, 344-46 (6th Cir. 2011); Estate of Kirby v. Duva, 530 F. 3d 475, 482-83 (6th Cir. 2008); Sigley v. City of Parma Heights, 437 F.3d 527, 535-36 (6th Cir. 2006); Cupp, 430 F.3d at 774-75. An officer may, however, continue to fire at a fleeing vehicle even when no one is in the vehicle’s direct path when “the officer’s prior interactions with the driver suggest that the driver will continue to endanger others with his car.” Hermiz, 484 F. App’x at 16; see, e.g., Scott v. Clay Cnty., 205 F. 3d 867, 877 (6th Cir. 2000); Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) … [emphasis added]
Finally, because the “calculus of reasonableness” allows for the fact that police officers must often “make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving,” Graham, 397 U.S. at 397—an officer does not violate the Fourth Amendment where, although ultimately wrong in his or her assessment of the circumstances, “a dangerous situation evolved quickly to a safe one before the police officer had a chance to realize the change.” See Cupp, 430 F.3d at 774-75. [iv]
The Sixth Circuit then applied the facts of case to the rules above. The court noted that House was struck in the leg by the vehicle. The court also noted that it was reasonable for House to believe that when St. Clair fired his weapon, he was firing intentionally (rather than accidentally) in defense of himself and other officers. It was at this point, that House decided to try to stop the driver, Stargell, by shooting at him. The court also noted that the situation was “tense, uncertain, and rapidly evolving.” [v] The court then stated:
Although the Taurus had struck two officers, Cass suggests that the coast was clear for the car to proceed unmolested despite the presence of other officers to effect the arrest. This, of course, was not how the situation appeared in real time. Informed by his knowledge of the circumstances and of police tactics, House reasonably understood that Stargell, in his quest to escape, posed a continuing risk to the other officers present in the immediate vicinity, including Johns and Murphy. Moreover, those officers were not required to step aside and let the Taurus escape, particularly after it had struck two of their fellow officers. See id. at 2021-22; Cupp, 430 F.3d at 774. In short, “[w]hile it may be easy for [Cass] to say that each officer was safe once the officer was no longer in the direct path of [the Taurus], no reasonable officer would say that the night’s peril had ended at that point.” Hocker, 738 F.3d at 155. Stargell remained behind the wheel, other officers were on the scene, and Stargell had demonstrated a willingness to injure officers trying to prevent him from fleeing. [vi]
As such, the court held it was reasonable under the Fourth Amendment for House to shoot at the vehicle that contained Stargell and Jordan.
Cass, the administrator of Jordan’s estate also argued on appeal that House should be liable because he violated his police department’s policy when he shot at the vehicle. However, the Sixth Circuit stated that administrative policies are separate from constitutional rights and a violation of department policy does not, in and of itself, mean the officer violated a suspect’s rights. Specifically, the court stated:
Cass also makes much of the fact that House violated Dayton Police Department policy by placing himself in the Taurus’s path. But “[t]he Supreme Court has been cautious to draw a distinction between behavior that violates a statutory or constitutional right and behavior that violates an administrative procedure of the agency for which the officials work.” Cooper v. Cnty. of Washtenaw, 222 F. App’x 459, 468 (6th Cir. 2007). House’s alleged violations of City policy do not change our conclusion that he did not act objectively unreasonably under the circumstances. See Freland, 954 F.2d at 347-48. [vii]
Additionally, Cass argued that the officer fired at Stargell in revenge for hitting him with the car. The court stated that the subjective motivation or intent is immaterial to whether the officer’s use of force was objectively reasonable under the Fourth Amendment. Particularly, the court stated:
Finally, Cass asserts that the district court erred in rejecting his contention that House fired the shot out of revenge. In a Fourth Amendment excessive force case, however, the officer’s “underlying intent or motivation” is immaterial—the only question is “whether the officer’s actions were ‘objectively reasonable’ in light of the facts and circumstances” then prevailing. Graham, 490 U.S. at 397. [viii]
Lastly, the court held that Cass cannot prevail on a claim against the city and the department because there was no underlying constitutional violation.
As such, the court affirmed the grant of summary judgment to all defendants in this case.
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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. 13-4409 (6th Cir. Decided October 16, 2014)
[ii] Id. at 2-5
[iii] Id. at 7
[iv] Id. at 7-8
[v] Id. at 9
[vi] Id. at 10
[vii] Id.
[viii] Id.
