©2018 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)

There is often a public outcry when it is learned that an officer has shot an unarmed individual. It is recognized that there is often a disconnect between the public expectations and public beliefs with respect to law enforcement’s use of force and the existing law, which grants law enforcement broad authority to use force.

A 2017 case from the United States Court of Appeals for the Sixth Circuit provides one example of the unarmed suspect shooting case. This case involves the officer being confronted with a hostile barehanded individual who is closing in on the officer. The court outlined the facts in Mitchell v. Schlabach[1] as follows:

On July 14, 2014, the 911 dispatch center in Alger County, Michigan received a report that “Tim Mitchell” had assaulted another individual named Kevin and that he was “headed towards Christmas,” Michigan. The caller stated that Mitchell had been drinking and was “swerving all over the road.” The dispatcher then contacted Schlabach—the only officer on duty at the time—and notified him that Mitchell was “pretty intoxicated” and had been “involved in a verbal altercation.”

Schlabach identified Mitchell’s car on a highway and followed it into a parking lot. Mitchell brought his vehicle to a stop in the parking lot, and Schlabach made a show of authority by pulling his police cruiser up to the driver’s side of Mitchell’s car. As soon as Schlabach came to a stop, Mitchell sped back onto the highway in an effort to evade arrest. Schlabach pursued Mitchell as he careened through residential neighborhoods, around cars, and through stop signs. Large portions of the chase involved Mitchell traveling at speeds in excess of 100 miles per hour. Inclement weather made the chase even more treacherous as it was pouring rain throughout the entirety of the pursuit. At one point, Mitchell “slammed on the brakes,” which Schlabach interpreted as an attempt to either “ram [him], or get [him] to break off th[e] pursuit.” Schlabach requested backup at several points, and the dispatcher confirmed that at least two officers were en route to provide assistance.

Ten minutes into the car chase, Mitchell ran his car into a roadside ditch in the middle of a national forest. Schlabach parked his car 63.6 feet from Mitchell’s car, where he assessed the situation “to see what’s [Mitchell] doing next, where’s he gonna go, does he have a weapon, what’s going on, is the vehicle in [sic] fire.” Mitchell exited the car, looked toward Schlabach’s vehicle, and then turned away while he pulled up his pants and crouched toward the ground. Mitchell appeared to be unarmed when he left his vehicle, and Schlabach did not observe anything indicating that Mitchell had a weapon.

Schlabach exited his vehicle into the pouring rain, drew his handgun, and began slowly approaching Mitchell. Schlabach claims that he gave loud, verbal commands as he approached Mitchell: “Stop, get down, get down on the ground, get down on the f-ing ground.” In response, Mitchell turned around and began walking toward Schlabach. Schlabach described Mitchell as walking “aggressively”—that is, with “[c]lenched fists, wide eyes, coming directly in my—towards me, . . . refusing to listen to any of my direct commands.” And while the dash-cam video does not clearly show Mitchell’s facial expressions or whether his fists were clenched, it leaves little room to doubt the hostility of Mitchell’s approach. Indeed, Mitchell headed straight toward Schlabach with long, purposeful steps despite the fact that Schlabach was pointing a gun directly at him. Mitchell continued toward Schlabach even after Schlabach began backing away in fear. Schlabach stated in a deposition that while Mitchell was approaching him, “He told me I was gonna have to f—ing shoot him,” which Schlabach took to mean, “if I didn’t shoot him, he was gonna kill me . . . [w]ith his fists, with his feet, with my gun, with anything he possibly could’ve gotten at the time.”

Schlabach took five hurried steps backward in an attempt to keep distance between himself and Mitchell. After Mitchell had pressed Schlabach all the way across the road and the gap between the two had narrowed to “somewhere between 10 and 21 feet,” Schlabach fired a shot at Mitchell.

Mitchell hunched over slightly, but continued moving purposefully toward Schlabach. Less than one second after firing the first shot and after taking two more steps back, Schlabach fired again. After the second shot, Mitchell hunched over further and turned around. He staggered for several steps back toward his vehicle before collapsing to the ground. Schlabach then holstered his weapon and handcuffed Mitchell. After running to turn off his siren, Schlabach returned to see if Mitchell still had a pulse. An autopsy later confirmed that Mitchell died from the two gunshot wounds inflicted by Schlabach.

In order to analyze the case, the court cited the considerations that are a routine part of law enforcement training on use of force:

While the ultimate determination of reasonableness must be based on the totality of the circumstances, this court has repeatedly found three factors to be helpful in excessive force cases: “(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.” Id.(quoting Sigley v. City of Parma Heights437 F.3d 527, 534 (6th Cir. 2006)) (internal quotation marks omitted). We are admonished not to assess those factors from a distance, but rather to consider that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 765-66 (quoting Graham, 490 U.S. at 396-97).

Simply stated:

1. How serious was the offense the officer suspected at the time the force was used.

2. Whether the suspect poses and immediate threat to the safety of the officers or others.

3. Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Seriousness of Offense-Weighs in Favor of Finding Reasonableness

The court in reviewing this case made several observations that are important to the analysis of any use of force. First, the court noted that Mitchell’s crimes were severe since initially he was driving drunk and had caused an altercation with another individual. The court noted that the crimes escalated further by his flight in a vehicle at speeds in excess of 100 mph while passing cars on the highway and traveling at high speed through a residential neighborhood. The court noted that Mitchell knowingly placed himself, the officer, and the public at risk of severe injury or death. The court noted that fleeing and eluding as well as the driving while intoxicated were felonies under Michigan law and thus were serious offenses for purposes of the force analysis.

Physical Threat-Weighs in Favor of Finding Reasonableness .

The court noted that at the time of the shooting, the plaintiff’s story, which generally must be accepted for summary judgment and qualified immunity motions, that story does not have to be accepted where the story is “blatantly contradicted by the record.” The court found that the plaintiff’s story “that Mitchell was simply “walking” toward Schlabach “with his hands at his sides” and “no weapon in [his] hands” when Schlabach shot him. Mitchell’s representative further denies that Mitchell was “rushing, running, or charging” toward Schlabach when he was shot.”

Instead that court relied on the video of the interaction which the court described:

The available video footage clearly shows that Mitchell approached Schlabach at more than a walking pace. Indeed, he moved toward Schlabach with speed, purpose, and confidence despite the fact that Schlabach had a gun trained on him. Mitchell continued charging toward Schlabach even as Schlabach changed trajectories and began backing away from him. We note that Mitchell’s verbal threats were unrecorded but that Schlabach testified that Mitchell said that Schlabach would “have to ‘f—ing shoot [him].'” The video evidence corroborates that testimony because it makes clear that Mitchell intended a confrontation with Schlabach. By the time Schlabach discharged his weapon, Mitchell had already pressed him back across the road and had narrowed the gap between them considerably. If Mitchell had continued any further, Schlabach may not have had enough time to react without a violent confrontation. The same analysis applies to Schlabach’s second shot since Mitchell continued charging toward Schlabach even after the first shot; it was only after Schlabach fired the second shot that Mitchell recoiled and began to retreat. Taken together, these facts all indicate that Schlabach had “probable cause to believe that the suspect pose[d] a significant threat of death or serious physical injury” when he fired both shots.

The court noted that “While it is beyond question that a police officer may not seize and unarmed, nondangerous suspect by shooting him dead,” it was clear that Mitchell, by his actions in this case was more than a nondangerous suspect. The court stated that it would not second-guess Schlabach’s “assessment, made on the scene, of the danger presented by Mitchell’s approach.

Resisting Arrest/Attempting to Evade Arrest by Flight-Weighs in Favor of Reasonableness

The court noted that Mitchell charged an officer who was pointing a gun at him after crashing the vehicle at the end of high-speed chase. The court concluded, these factors only establish that Mitchell was resisting arrest.

The court addressed and rejected several of the plaintiff’s arguments that the shooting was unreasonable:

First, the plaintiff pointed to the fact that the officer testified in deposition that he did not believe that Mitchell was armed and therefore, according to plaintiff, Schlabach could not reasonably believe that Mitchell posed an imminent threat to his safety.

The court responded:

Common sense suggests otherwise. As an initial matter, we note that Schlabach only testified that he did not believe that Mitchell was armed, not that he knew that Mitchell was unarmed. Indeed, Schlabach could have reasonably believed Mitchell had a handgun, a knife, or some other weapon concealed on his person. Even if such a belief was unreasonable, a suspect need not be armed to pose an imminent threat to an officer’s safety. Here, Schlabach reasonably feared for his safety despite the fact that Mitchell may have been unarmed—Mitchell’s aggressive approach suggested that he might well have attacked Schlabach with his fists, or that he might have tried to wrestle for control of Schlabach’s gun so that he could use it against the officer. Thus, we find that Schlabach’s testimony is not dispositive on the issue of reasonableness.

The court then addressed plaintiff’s expert testimony that Mitchell might have been as far away as 21 feet from the officer at the time of the shooting and therefore did not pose a threat.

The court responded:

That evidence, however, is contradicted by the video footage in this case. While the video does not allow for a precise determination of the distance between Mitchell and Schlabach at the time of the first shot, there is no question that Mitchell showed no signs of stopping and that one more step would have placed Mitchell in a position to attack Schlabach with his fists. Based on the record evidence that is not contradicted by the video footage, we hold that the distance between Schlabach and Mitchell at the time of the shooting did not render Schlabach’s decision to shoot unreasonable.

The plaintiff also raised what I refer to as the lesser alternatives argument that indicates that the officer should have tried some less intrusive force option to stop the subject’s advance. Here, plaintiff argued that the officer should have tried using his pepper-spray or baton.

In rejecting plaintiff’s argument, the court wrote:

[T]his argument ignores the fact that Schlabach faced a rapidly evolving situation when he stopped his car after Mitchell crashed his vehicle. [The fact that a situation “unfolds quickly” is not alone sufficient to justify the application of deadly force, but it is a factor that weighs in favor of a finding of reasonableness when it accompanies a credible threat to the safety of an officer or the public. See Mullins, 805 F.3d at 766-67. After being led on a dangerous car chase for more than ten minutes, Schlabach reasonably assumed that Mitchell would do whatever it took to avoid apprehension. As such, Schlabach acted reasonably when he drew his gun upon exiting his vehicle. With his gun already drawn and Mitchell rapidly approaching him, it would have been both impractical and unwise for Schlabach to have holstered his weapon so that he could attempt to use pepper spray or his nightstick against Mitchell. Accordingly, we hold that the fact that Schlabach did not attempt to use less deadly force to subdue Mitchell is insufficient to render his use of deadly force unreasonable under these specific circumstances.

The confrontation in this case was not a typical encounter between a police officer and a defiant suspect. Schlabach, the lone available officer at the time, shot Mitchell during a confrontation in the middle of an unpopulated national forest after Mitchell charged toward him in direct defiance of orders to drop to the ground. The extended, 100-mile-per-hour car chase in the rain that preceded the shooting would have heightened the heart rate, anxiety, and fear of any normal person, police officer or not. The available video evidence makes clear that Mitchell was close enough to pose a substantial threat to Schlabach’s safety at the time he was shot. Even viewing the facts and video in the light most favorable to Plaintiff, we hold that Schlabach did not violate Mitchell’s right to be free from excessive force because his decision to shoot was reasonable under the totality of the circumstances.

After determining that the officer’s use of deadly force was Constitutional the court turned to the qualified immunity prong, in other words, even if the officer’s actions had been determined to be unconstitutional [which they were not], was the law clearly established such that reasonable officers would know that the action was unconstitutional.

The court noted that under recent United States Supreme Court analysis:

1. An officer’s actions are against clearly established law for purposes of qualified immunity only when existing precedent places the statutory or constitutional question beyond debate.

2. Courts should not define clearly established law at a high level of generality.

3. Court should look only to precedents particularized to the facts of the case although the standard does not require a case directly on point.

4. The narrow definition of clearly established functions to protect all but the plainly incompetent or those who knowingly violate the law.

The court then reviewed the cases cited by the plaintiff and determined that none of the cases were sufficiently on point with the facts of this case to make the law clearly established. As such, qualified immunity was also granted.

NOTE: It is important to note that the majority opinion here was based largely on the video evidence, which the majority watched and interpreted to depict an aggressively approaching Mitchell who was poised to attack the officer.

Bottom-Line Observations:

1. In any federal use of force claim, the court will analyze the officer’s force applying the Graham 3-part test applying the totality of circumstances known to the officer without 20/20 hindsight and considering that officers are making split-second decisions in rapidly evolving tense situations.

2. Distances are never exact, 21-foot analysis is not always a do all or end all with respect to threat analysis.

3. A barehanded subject may pose a threat of serious bodily harm or death to an officer where the subject attacks the officer barehanded or where the subject accesses the officer’s weapons. The court did note that the officer was by himself.

4. While adrenaline rush is often used to allege the officer over-reacted, the court here noted that adrenaline may heighten the officer’s fear under the physical threat prong when it noted:

The confrontation in this case was not a typical encounter between a police officer and a defiant suspect. Schlabach, the lone available officer at the time, shot Mitchell during a confrontation in the middle of an unpopulated national forest after Mitchell charged toward him in direct defiance of orders to drop to the ground. The extended, 100-mile-per-hour car chase in the rain that preceded the shooting would haveheightened the heart rate, anxiety, and fear of any normal person, police officer or not.



[1] Mitchell v. Schlabach, 864 F.3d 416 (6th Cir. 2017).


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