On August 17, 2018, the Eleventh Circuit Court of Appeals decided Wilson v. Parker et al.[i], which serves as an excellent review of the law pertaining to the Fourth Amendment and the use of deadly force. The relevant facts of Wilson, taken directly from the case, are as follows:
A. Uncontested Facts
On July 21, 2015, Parker and Thompson responded to a call stating that it sounded like two men were fighting in the woods behind the caller’s house. Parker and Thompson began searching the woods using the procedure called “contact and cover,” described above.
Thompson made initial contact with Wilson, a 47 year-old man with a history of bipolar disorder, paranoid schizophrenia, and methamphetamine abuse. Wilson, who was dressed in nothing but his underwear, was sitting on the ground with his back to the deputies and screaming at someone or something that was not there. Thompson commanded Wilson to show his hands. Instead, Wilson stood up and approached Thompson. Parker subsequently fired five shots, three of which struck Wilson. One shot hit Wilson in his “mid back,” proceeding right to left and “slightly back to front.” Another shot hit him in his right lower back, proceeding right to left “with minimal front to back deviation.” A third bullet struck Wilson’s right thigh. Wilson died as a result of the gunshots. He was “acutely intoxicated by methamphetamine” at the time of his death. In total, about eleven seconds passed between Thompson’s first command and Parker’s first shot.
B. The Deputies’ Account
Other than the facts described above, the parties dispute what occurred on July 21, 2015. According to the deputies, when Thompson made contact with Wilson, Wilson was sitting on the ground, holding a stick in his lap. Upon standing, Wilson charged Thompson in “an aggressive state,” holding the stick diagonally across his body in a “port arms” or “parade rest” position and yelling at the top of his lungs. Thompson continued to instruct Wilson to show his hands. Wilson never raised the stick or pointed it at Thompson but continued to charge. Thompson backed away from Wilson as Wilson came toward him, but Wilson moved faster than Thompson could back up. Thompson froze and did not use his taser because he “didn’t have a shot.” He said Parker’s first name three times, calling for assistance.
When Thompson first made contact with Wilson, Parker did not see them. As Parker started to make his approach, he saw Wilson moving toward Thompson, holding a stick or branch. Although Parker had pepper spray, he believed that it was not a good option because he was not close enough, and it sprayed in a cone and therefore would have affected Thompson as well. Parker responded to Thompson’s call for help by firing at Wilson, though he would have shot even if Thompson had not said his name. Wilson fell approximately eight to ten feet from Thompson.
The stick broke underneath Wilson as he fell. A Georgia Bureau of Investigation (“GBI”) agent testified that the stick, which was approximately five and one-half feet long, was fragile and came apart as he picked it up. No tests were done to determine whether there was any trace evidence indicating Wilson had held the stick. The GBI agent explained that there was little to no chance of getting a fingerprint from the surface of the stick and any “touch DNA” that would have come from the stick would have been expected and would not be probative. Moreover, the scene was not very bloody, and the GBI agent did not remember seeing blood on the stick on the day of the shooting.[ii]
The plaintiffs filed suit against Deputy Parker and Deputy Thompson and alleged that they used excessive force under the Fourth Amendment when Deputy Parker shot Wilson. They also alleged that the deputies violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as well as state law civil claims. The district court granted qualified immunity to the deputies on the Fourth Amendment claim and granted summary judgment in favor of the deputies on the ADA and Rehabilitation Act claims. Lastly, the district court held the state law claims failed on the merits of the allegations. The plaintiffs appealed the dismissal of their case to the Eleventh Circuit Court of Appeals. [Note: This article will not discuss the state law claims.]
The Eleventh Circuit first examined whether Deputy Parker violated the Fourth Amendment by using excessive force when he shot Wilson. The court discussed the Fourth Amendment principals that apply when examining the reasonableness of a law enforcement officer’s use of force and stated
Apprehension by deadly force constitutes a seizure. Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013). In determining whether an officer used excessive force “we pay ‘careful attention to the facts and circumstances’ of the case, ‘including the severity of the crime at issue . . . and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight,'” id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989)), but the decisive fact here is the threat of physical harm that Wilson posed to Thompson at the time Parker shot him, cf. Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (“In this case, the reasonableness analysis turns on the second of these factors: the presence of an imminent threat.”). If a reasonable officer could have believed under the circumstances that Wilson “posed a threat of inflicting serious injury or death” to Thompson, then “the shooting was objectively reasonable regardless of whether [Wilson] had already committed a crime or was resisting or attempting to evade arrest.” Shaw v. City of Selma, 884 F.3d 1093, 1099 n.5 (11th Cir. 2018). Nevertheless, “we must still slosh our way through the factbound morass of ‘reasonableness,'” to answer that question. Scott v. Harris, 550 U.S. 372, 383, 127 S. Ct. 1769, 1778 (2007).[iii]
Thus, the court will consider (1) the seriousness of the crime at issue, (2) whether Wilson posed a threat to the officer or other, and (3) whether Wilson was actively resisting or attempting to evade arrest by flight. However, the court noted the most important factor is whether Deputy Parker reasonably perceived that Wilson posed a threat of inflicting serious injury or death to Deputy Thompson. If so, the shooting would be reasonable under the Fourth Amendment, regardless of the first or third factor above.
The analysis regarding a use of force is very fact specific to each case, therefore, the court examined facts relevant to whether Deputy Parker reasonably perceived Wilson posed threat of serious injury or death to Deputy Thompson. The court held that the Deputy Parker did have probable cause to believe that Wilson posed a threat of serious physical harm to Deputy Thompson.
The court first observed that Wilson was in the woods, wearing his underwear and yelling at someone that was imagined. This irrational and erratic behavior would certainly cause a reasonable law enforcement officer to exercise caution to protect themselves and the suspect. Second, the court noted that Wilson, according to the deputy’s testimony, and physical evidence, charged at Deputy Thompson with a 5 ½ foot long stick. The court stated
Although Wilson did not point the stick at Thompson or raise it to swing it, “[t]he law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (alteration omitted) (quoting Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007)).[iv]
The court also noted that while Wilson had not yet fully closed the distance to Deputy Thompson, he could have swung the stick once he was within striking range.[v] Therefore, Deputy Parker was not required to wait until Wilson was within striking distance to use deadly force.
Third, the court noted that Wilson did not comply with the deputy’s commands to drop the stick. The court stated that this type of non-compliance, combined with the actions of the suspect, support a conclusion that deadly force was reasonable.[vi]
Fourth, the erratic behavior exhibited by Wilson weighed in favor of the deputy’s reasonable perception of threat in this case. The court stated that “a person acting unpredictably could present an increased threat to others.”[vii]
Lastly, the court examined the fact that Deputy Parker did not warn Wilson before he used deadly force. The court stated that a warning was not feasible under the circumstances of Wilson’s case because the situation unfolded so rapidly. In fact, from first contact with Wilson to the shooting was only approximately eleven (11) seconds. Further, Wilson was advancing on Deputy Thompson faster than the deputy could back up, so giving a warning would have increased the risk that Deputy Thompson could be seriously harmed.
The court then summed up the analysis of the Fourth Amendment issue as follows:
[Deputy] Parker was faced with a difficult choice. He could either shoot an apparently intoxicated or mentally ill man, or he could stand aside and risk a fellow officer being seriously harmed or killed. Even if the situation could have been handled better—a proposition that is by no means certain—”we are mindful that officers make split-second decisions in tough and tense situations,” and “[w]e are ‘loath to second-guess decisions made by police officers in the field.’” Hammett v. Paulding Cty., 875 F.3d 1036, 1050-51 (11th Cir. 2017) (first quoting Morton, 707 F.3d at 1281; then quoting Penley, 605 F.3d at 854). Viewing the facts from the perspective of a reasonable officer on the scene, we conclude Parker did not violate Wilson’s Fourth Amendment rights.[viii]
Thus, the court held that Deputy Parker did not violate the Fourth Amendment when he shot Wilson, and as such, was entitled to summary judgment on this claim.
The court then examined the plaintiff’s claim that the deputies violated the ADA in their use of force against Wilson. In order to state a claim under the ADA, the plaintiffs must show (1) that Wilson was a qualified person with a disability under the ADA, (2) that it was reasonable for the deputies to modify their police procedures to accommodate Wilson’s disability, and (3) that the deputies discriminated against Wilson because of his disability.
The district court granted summary judgment to the to the deputies because the plaintiffs failed to establish the three requirements above, particularly, they (1) failed to show that Wilson was a qualified person with a disability under the ADA, (2) failed to establish that it was reasonable for the deputies to modify their procedures in this case, and (3) failed to show any alleged discrimination was due to Wilson’s disability. On appeal, the plaintiffs only asserted the Wilson was in fact, a qualified person under the ADA. However, the plaintiffs failed to address points two and three and therefore the court of appeals affirmed the decision of the district court granting summary judgment for the ADA. The court granted summary judgment on the Rehabilitation Act claims for the same reason as the ADA claim.
Therefore, the court of appeals affirmed the decision of the district court.
[i] No. 17-15294 (11th Cir. Decided August 17, 2018 Unpublished)
[ii] Id. at 3-5
[iii] Id. at 7
[iv] Id. at 8-9
[v] Id. at 9 (See Shaw, 884 F.3d at 1100 (holding that an officer did not use excessive force in shooting a suspect that was carrying a hatchet and approaching the officer because, even though the hatchet was not raised at the time of the shooting, the suspect “could have raised [it] in another second or two and struck [the officer] with it”).
[vi] Id. (Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (11th Cir. 2009) (“[T]he escalation into deadly force was justified by [the decedent’s] refusal to comply with the officers’ commands.”).
[vii] Id. at 10