||FIFTH CIRCUIT AFFIRMS IMMUNITY FOR OFFICER WHO SHOT UNARMED MAN

FIFTH CIRCUIT AFFIRMS IMMUNITY FOR OFFICER WHO SHOT UNARMED MAN

On April 20, 2018, the Fifth Circuit Court of Appeals decided Romero v. City of Grapevine et al.[i], in which the court examined whether an officer was entitled to qualified immunity when he shot a suspect who fled a burglar alarm, led police on a dangerous high-speed chase, and repeated refused commands but was subsequently found to be unarmed.  The relevant facts of Romero, taken directly from the case, are as follows:

On February 20, 2015, shortly after six PM, Officer Clark responded to a burglar alarm at a commercial building. In the driveway adjacent to the back of the building, Clark encountered an idling four-door sedan. The car began to move forward and Clark followed for a short period of time before turning on his emergency lights, signaling for the car to pull over. The sedan, driven by Villalpando, did not stop, proceeded to speed up, and ran a stop sign. Clark activated the full use of his emergency lights and car siren, and began to follow the vehicle. He informed the police dispatcher that he was in pursuit and that he believed the sedan’s occupant or occupants were responsible for the “[break] in” at the commercial building. Villalpando continued to accelerate and eventually pulled onto the onramp to State Highway 121, southbound.

Clark began a high-speed chase of the sedan on the highway, which, at the time, was heavily trafficked. Villalpando wove the sedan back and forth across the four lanes of traffic and drove around traffic along the shoulders. Clark asked dispatch to alert police units in the neighboring city of Euless. After roughly one-and-a-half minutes of highway pursuit, Villalpando waved one hand out of his driver’s side window, apparently signaling that he would pull over. Villalpando proceeded to pull onto the narrow shoulder of a two-lane exit ramp; Clark pulled over behind Villalpando’s sedan. Clark testified that because he had followed Villalpando from the scene of a suspected burglary and engaged in a high-speed chase in which Villalpando was driving recklessly, he treated the stop as a “felony traffic stop.” As Clark explained, “[i]n a felony traffic stop, the Officer will take additional precautions when encountering the stopped vehicle and the precautions can include drawing the Officer’s duty weapon,” which he did before exiting his vehicle.

Clark immediately instructed Villalpando: “Let me see your hands. Put your hands out the window.” Villalpando complied and waved both hands out of his driver’s side window. Clark proceeded to repeat himself several times, instructing Villalpando to “get [his] hands out the window” and “keep [his] hands out the window.” During this time frame, Clark testified that Villalpando “repeatedly moved at least one of his hands back out of view inside the vehicle.” The dash cam footage shows Villalpando moving his right hand back inside his window at least once. Throughout this time period, several cars passed.

Keeping his left hand raised and visible, Villalpando opened his driver’s side door. He then raised both of his hands in the air. Clark immediately ordered Villalpando to “stay right there . . . stay right there and keep your f-cking hands out the window.” Villalpando appears to move both of his hands back inside of the car. Clark again repeated his instructions, yelling “get your hands out,” “keep your f-cking hands up,” and “dude, I’m telling you keep your hands right there.” He also radioed the police dispatcher, telling them that Villalpando was trying to get out of the vehicle and requesting that his backup “step it up.” Villalpando again briefly moved his right arm back inside his vehicle, after which Clark screamed “hey! Keep your f-cking hands where I can see ’em.” Again, several cars drove past the scene developing on the highway shoulder.

Despite Clark’s instructions, Villalpando proceeded to open his door, exit his car, and turn towards Clark. He initially kept his arms raised above his head. Clark yelled several more warnings: “you better stand right there motherf-cker,” “stay right there,” “keep your hands where I can see them and stay right there.” Though Clark’s exact position at this point is not visible on the film, a photograph taken by a passing motorist shows Clark standing no more than a few feet in front of his driver’s side headlight with his gun drawn.

Villalpando’s right foot was nearly touching the white line separating the shoulder from the traffic lanes. Clark testified that he was “concerned [Villalpando] had a weapon on his person.” Clark radioed dispatch, telling them that he “got [Villalpando] outta the vehicle, his hands are up, he’s facing me right now. Kept tryin’ to reach for somethin’.” Villalpando then lowered his hands and placed them on his head. Clark told dispatch that he had Villalpando at gunpoint and that Villalpando was currently obeying his commands but repeated that he “kept trying to reach for somethin'” in his vehicle.

Villalpando asked Clark “what’s your problem?” and “who you calling motherf-cker?” Clark responded: “[you] kept reaching for stuff, you’re not gonna listen to me.” Villalpando tapped his chest and said “kill me.” Clark assured him “nah, I’m not gonna kill you,” and again radioed dispatch that backup “might want to step it up. He’s saying kill me.” As several more cars passed in view of the dash cam—including at least one in the lane closest to the shoulder—Villalpando turned his back to Clark. He then dropped his hands briefly to the back of his waistband and clasped his right wrist with his left hand. Clark again screamed “hey. Get your f-cking hands up now.” Villalpando turned and raised his hands in the air and told Clark “I’m gonna walk to you.” Clark yelled “no, stand right there” and “hey. Get your hands up” as Villalpando again dropped his hands briefly to his waist. Clark repeated himself: “stand right there . . . get to the back of the car.” Villalpando again said to Clark “nah. Kill me.”

Over the next several seconds, Villalpando began to walk slowly towards Clark with his hands on his head. Four times, Clark told Villalpando to “stand right there,” and he instructed him twice to “get to the back of the car” and to “stop . . . stop right there.” Villalpando twice verbally refused to comply, stating “no . . . no, I’m not.” Fumbling slightly with his hat, Villalpando turned his back to Clark, and continued moving towards him while spinning again to face him. Clark continued to yell repeated instructions: “back up . . . dude, back up. Back up, motherf-cker . . . Back up. Get to the back of the car.”

As cars continued to pass in the traffic lanes, Villalpando kept walking slowly towards Clark with his hands on his head; Clark told Villalpando four more times to “get to the back of the car.” Eventually, Villalpando got so close to Clark’s vehicle on the driver’s side that he was no longer visible on the dash cam. Seconds after Villalpando stepped off camera, Clark fired two gunshots. Clark yelled at Villalpando several times to “get your hands where I can see them” as he radioed to dispatch “shots fired.” Clark told dispatch “he was coming at me . . . he kept coming at me. I gave him commands to stop. He kept coming at me, he wouldn’t stop.” Villalpando died several hours later. He was ultimately found to be unarmed.[ii]

Romero, as Administrator of the Estate of Villalpando, the decedent in this case, filed suit and alleged constitutional violations against the city and chief of police for failure to train, excessive force, and deliberate indifference to medical needs. Romero sued the officer that used deadly force on Villalpando for excessive force under the Fourth Amendment.  The district court granted summary judgment for the city and chief and qualified immunity for the officer.  Romero appealed the grant of summary judgment and qualified immunity to the Fifth Circuit Court of Appeals.

The Fifth Circuit first discussed qualified immunity, which protects government officials that are engaged in discretionary functions.  Discretionary functions are functions where the government official, can exercise choice between various courses of conduct, such as how much force to use in a given situation.  When the government official asserts qualified immunity from suit, the burden shifts to the plaintiff to show that the government official, such as a police officer, is not entitled to qualified immunity.   The court stated

In determining whether an officer is entitled to qualified immunity, courts engage in a two-step inquiry. Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014). First: “Taken in the light most favorable to the party asserting the injury, do the facts show the officer’s conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, we ask “whether the right in question was ‘clearly established’ at the time of the violation.” Tolan, 134 S.Ct at 1866 (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)).[iii]

The court then set out to determine whether the officer violated Villalpando’s Fourth Amendment right to be free from excessive force when he shot him.  The court wrote, that in order to state a claim for excessive force, a plaintiff must show (1) an injury, (2) which resulted from a use of force that was clearly excessive to the need and (3) the force that was used was objectively unreasonable.[iv]  The court then set out the legal principles that they must consider in deciding this issue.  The court stated

The use of deadly force violates the Fourth Amendment unless “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Garner, 471 U.S. at 11; see also Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (“An officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm.”).

Recognizing 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,” Graham, 490 U.S. at 396, the Supreme Court has warned against “second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation,” Ryburn v. Huff, 565 U.S. 469, 477 (2012). Accordingly, reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. In evaluating whether an officer acted reasonably, courts may consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (quoting Graham, 490 U.S. at 396). The court “must consider all of the circumstances leading up to [the moment deadly force is used], because they inform the reasonableness of [the officer’s] decisionmaking.” Mendez v. Poitevent, 823 F.3d 326, 333 (5th Cir. 2016).[v] [emphasis added]

The court then examined the facts of Villalpando’s incident.  The court described the relevant facts as viewed on the officers in-car camera as follows:

  • The officer was responding to a suspected burglary, which is a felony, and observed Villalpando’s car at the location;
  • Villalpando drove away as the officer arrived;
  • The officer activated his emergency equipment to stop Villalpando;
  • Villalpando fled in his vehicle at a high rate of speed, ran a stop sign, and accelerated onto the highway;
  • On the highway, Villalpando drove recklessly and swerved back and forth across four lanes of traffic and drove on the shoulder;

The court noted that the above facts provided the officer with a reasonable belief “that the occupant or occupants of Villalpando’s car were involved in burglarizing or attempting to burglarize the commercial building.”[vi]

The court then continued with the relevant facts pertaining to the shooting and described those facts as follows:

  • When Villalpando finally stopped his vehicle on the side of the highway, the officer gave numerous verbal commands for him to keep his hands visible;
  • Villalpando who put his hands out the driver’s side window, put his right hand back inside the vehicle against verbal commands;
  • Villalpando then exited his vehicle as the officer gave him numerous commands to stay where he was;
  • The officer told other units on the radio to “step it up” which showed he was worried for his safety;
  • Villalpando repeatedly told the officer to “kill me;”
  • Multiple cars were passing the officer and Villalpando at a speed fast enough to seriously injure or kill them if they were struck;
  • Villalpando kept reaching into the car against verbal commands;
  • Villalpando then ignored the officer’s commands to stay at his car and began walking back to the officer while dropping and raising his arm and deliberately disobeying the officer’s commands;
  • Villalpando got so close to the officer that he could no longer be seen on the cars dash-cam;
  • The officer knew that at that distance it would only take a push to put him in the travel lanes where he could be struck by a car.

Considering all these facts, the court then stated

Given the tense and evolving factual circumstances, Clark “reasonably believe[d] that [Villalpando] pose[d] a threat of serious harm.” Manis, 585 F.3d at 843. Villalpando fled the scene of a suspected crime, drove recklessly and endangered other drivers, refused to obey roughly thirty commands to keep his hands visible and to stay in or near his vehicle, and approached Clark on a narrow highway shoulder directly adjacent to speeding traffic. At the time Clark shot Villalpando, he had walked so close to Clark’s vehicle that he was no longer visible on the dash cam. Clark was forced to make a “split-second judgment[]—in circumstances that [were] tense, uncertain, and rapidly evolving—about the amount of force that [was] necessary.” Graham, 490 U.S. at 396. That Villalpando was ultimately found to have been unarmed is immaterial—Clark reasonably feared for his own safety. We will not “second-guess[] a police officer’s assessment, made on the scene, of the danger presented by a particular situation.” Ryburn, 565 U.S. at 477. In light of the information available to him at the time of the shooting, Clark’s decision to use deadly force was reasonable, and he did not violate Villalpando’s Fourth Amendment right.[vii] [emphasis added]

Therefore, the Fifth Circuit affirmed the grant of qualified immunity to the officer because the plaintiff failed to establish that his constitutional rights were violated.

Further, because there was no constitutional violation, summary judgment for all claims against the chief and the city were also appropriate; therefore, the court affirmed the grant of summary judgment to these defendants.

____________________________________

CITATIONS:

[i] No. 17-10083 (5th Cir. Decided April 20, 2018)

[ii] Id. at 2-5

[iii] Id. at 7

[iv][iv] Id. at 8

[v] Id. at 8-9

[vi] Id. at 9

[vii] Id. at 10-11

By |2018-10-04T14:09:13+00:00October 2nd, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.