Marion v. City of Corydon, Indiana et al., No. 08-2592, 2009 U.S. App. LEXIS 6094 (7th Cir. Decided March 23, 2009)

The Seventh Circuit Court of Appeals, in Marion v. City of Corydon et al.i, recently held that officers acted reasonably when they shot a suspect who was engaged in a high speed chase with the police.  This case began when officers approached Marion after he had shoplifted various items from a grocery store.  As police and store personnel took Marion, who had his baby in an infant seat with him, to the security office, he grabbed the baby and fled from the store.  Marion made it back to his car and threw the baby into the car.  As officers struggled with Marion, a store security officer rescued the baby from the car.  An officer attempted to use a Taser on Marion, but he managed to twist the cartridge so that it would not fire.  Marion was able to flee in his car through the streets of Louisville, Kentucky, with police in pursuit.

The pursuit entered Interstate 64 in Louisville, Kentucky and continued, in excess of 80 miles per hour, into the State of Indiana.  The pursuit continued into Indiana for approximately seven miles before an officer managed to deploy stop sticks and flatten three of Marion’s tires.  Marion slowed to approximately 40 miles per hours and swerved back and forth across all lanes.  Debris was falling off of his car into the path of pursuing police units.  Officers continued to pursue with lights and sirens.

After approximately seven more miles, officers, positioned in the median, attempted to re-deploy stop sticks in an effort to flatten his remaining tire.  Marion swerved at the officers in the median and drove around the stop sticks back onto the interstate.

Officers then attempted a rolling roadblock or “box-in” maneuver.  Marion swerved and tried to pass between police vehicles.  He made vehicular contact with police vehicles and tried to pass a police officer on the shoulder.

After approximately two more miles, Marion swerved abruptly to the left and into the grassy, muddy median.  He was driving toward the oncoming lanes of the interstate where there was other traffic.  Some officers exited their vehicles and approached Marion’s vehicle on foot.  As Marion continued to drive toward the eastbound lanes, the officers on foot fired into Marion’s vehicle.  Marion then put his vehicle into reverse and revved the engine.  The tires spun in the mud and the vehicle began backing directly toward other officers who were on foot.  Officers yelled for Marion to stop and he did not.  Officers fired their weapons into the vehicle.  Marion then put the vehicle back into the forward gear and revved the engine in an attempt to escape.  Officers were positioned directed in front of Marion’s vehicle in its path.  Officers again fired on Marion’s vehicle and he was hit.

Marion was then removed from the vehicle and treated for gunshot wounds.  As a result of the shooting, he lost his right eye and suffered severe damage to his left hand.

He sued officers under Section 1983 and their respective cities for excessive force in violation of his Fourth Amendment rights.  District court granted summary judgment in favor of the officers and the cities.  Marion appealed to the Seventh Circuit Court of Appeals.

The issue before the court was whether it was objectively reasonable for the officers to believe that Marion posed an actual threat to officers or innocent bystanders once he reached the median where the shooting took place.ii  If the officer’s belief was objectively reasonable, then their use of deadly force under the circumstances would be reasonable.

In its analysis, the court first noted that pre-seizure police conduct, meaning the conduct of the officers prior to the shooting, is not analyzed when making a determination of whether the force used was objectively reasonable.iii  Rather, in the Seventh Circuit, the court will limit its analysis to force used when the seizure occurred, which in this case, was in the median where the shooting took place.  The court also noted that a seizure takes place “when there is a governmental termination of freedom of movement through a means intentionally applied.”iv

Police uses of force are governed under the “objective reasonableness” standard set forth in Graham v. Conner.v  In Graham, the United States Supreme Court stated “the 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.”vi  In Tennessee v. Garnervii the United States Supreme Court outlined when it is objectively reasonable for an officer to use deadly force.  Specifically, the Supreme Court counseled that

It is reasonable for a law enforcement officer to use deadly force if an objectively reasonable officer in the same circumstances would conclude that the suspect posed a threat of death or serious physical injury to the officer or others.viii

Recently, in Scott v. Harrisix, the United States Supreme Court faced the issue of when it is constitutionally reasonable to use deadly force to terminate a dangerous, high speed chase.  In this case, the Supreme Court held

A police officers’ attempt to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.x

In applying the above rules to the facts of Marion, the Seventh Circuit noted that throughout the chase, Marion had very little regard for the safety of officers or innocent bystanders.  However, the court then limited its analysis to the moment when the officers and Marion were in the median, which is the point the seizure occurred.

Marion contended that at the point he was shot, his vehicle was stuck in the mud, had three flat tires, was overheating and that a reasonable officers in the same circumstances as the defendants could not conclude that he posed a danger to anyone.xi  The officers, in sworn affidavits, testified that at the time they fired their weapons, they were in fear of lethal danger to themselves and others.xii

Further, they testified that at no point did it appear that Marion was trying to surrender or was stopping his attempt to flee.xiii  Both officer and citizens testified that it appeared that Marion intended to drive his vehicle through the median and onto the eastbound lanes of the interstate.xiv

Based on a review of the evidence, the Seventh Circuit Court of Appeals stated

Despite Marion’s contentions, it was reasonable for the officers to determine that he did actually pose a threat to the safety of officers and of innocent bystanders. While three of Marion’s tires were flat, he had been able to travel on three flat tires at fairly high speeds for a significant stretch of time. Even after he entered the median and officers on foot surrounded his vehicle, the video evidence shows that Marion’s vehicle continued to move forward significantly. Later, after he revved his engine, he was able to drive the vehicle backward as well. A reasonable officer would have concluded that, absent police intervention, Marion had the capability to run over officers and/or to reach the eastbound lanes of the highway. Moreover, a reasonable  officer would have determined that, if he did reach the eastbound lanes, there was a significant possibility that Marion would have rammed one or more bystander’s vehicles or caused an accident between bystanders’ vehicles, posing a substantial risk of serious injury or loss of life.xv

The court then held that, under the totality of the circumstances, it was reasonable for the officers to believe that Marion seriously endangered both officers and innocent bystanders; therefore, it was reasonable for officers to discharge their firearms in Marion’s direction to stop him.xvi  In light of this, there was no Fourth Amendment violation; thus, the officers and their employers (cites) are immune from suit.


i Marion v. City of Corydon, Indiana et al., No. 08-2592, 2009 U.S. App. LEXIS 6094 (7th Cir. Decided March 23, 2009)
ii 15
iii 12
iv Id.(citing Scott v. Harris, 550 U.S. 372 (2007); Brower v. County of Inyo, 489 U.S. 593 (1989))
v 490 U.S. 386 (1989)
vi 490 U.S. at 397
vii 471 U.S. 1 (1985)
viii MarionNo. 08-2592 at 13 (citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985))
ix 550 U.S. 372 (2007)
x Id.
xi MarionNo. 08-2592 at 15
xii 7-8
xiii Id.
xiv Id.
xv 15-16
xvi 16

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