||ELEVENTH CIRCUIT GRANTS IMMUNITY IN SHOOTING OF EMOTIONALLY DISTURBED MAN WITH BB PISTOL

ELEVENTH CIRCUIT GRANTS IMMUNITY IN SHOOTING OF EMOTIONALLY DISTURBED MAN WITH BB PISTOL

On August 14, 2019, the Eleventh Circuit Court of Appeals decided Davis v. Edwards et al.[i], in which the court examined with a deputies were entitled to qualified immunity for the stop and shooting of an emotionally disturbed man who was armed with a realistic looking BB pistol.   The relevant facts of Davis, taken from the case, are as follows:

This is a tragic case surrounding events which occurred near Dadeville, Alabama, on February 11, 2015, during which the officers were involved in the shooting death of local citizen Fletcher Ray Stewart (“Stewart”). Stewart was a 46-year-old lifelong resident of rural Tallapoosa County, Alabama. Stewart suffered from mild mental retardation and was known by both the residents of Dadeville and the members of local law enforcement.

On February 11, 2015, Stewart’s nephew, Benny Welch, called 911 to report his uncle was wandering on the road “rasing [sic] all kind of Cain, and he’s got a pistol in his pocket. . . . He showed it – you know, pulled it out when he walked by.” (R. Doc. 109-9, p. 3.) The 911 operator dispatched Deputy Edwards, telling Edwards that Stewart was “walking up and down [Booger Hollow Road] hollering, [and] he has got a pistol that he is waving around.” (R. Doc. 109-10, p. 2.) Edwards responded to the call and requested any available backup. Officers Hardnett and Fenn also responded to the call.

Edwards had encountered Stewart numerous times when responding to incidents in which Stewart was involved. During these encounters, Edwards had been able to diffuse any problem by merely talking to Stewart, or by giving him snacks or small change. However, on occasion, Edwards also had responded to calls alleging violence by Stewart. In responding to these calls, Edwards had seen Stewart attack and threaten others, including police officers, with weapons such as a taser, bicycle chain, and large rock. (R. Doc. 164-1, p. 18-25.) In addition, the record shows that Edwards responded to a call that Stewart assaulted his own mother. (Id. at p. 18-20.) Edwards also knew that Stewart had at various prior times been in possession of a knife and brass knuckles. (Id. at p. 23, 25.) On this fatal day, as Edwards drove toward Stewart in response to the 911 call, Stewart ran into the woods. Edwards chased Stewart and commanded him to stop, which eventually he did. At that point, the other two officers had arrived at the scene with their guns drawn. Edwards shouted commands to Stewart, alternating between ordering him to keep his hands up and asking him where he had placed the gun. Instead of following either of Edwards’s commands, Stewart moved his hands toward his back waistband, and Edwards opened fire. Two rounds struck Stewart, killing him. Importantly, the entire encounter was captured by Edwards’s body camera, the footage of which is included as part of the record. See Def. Exh. 129, at 5. The parties, not surprisingly, dispute whether Edwards fired before or after Stewart removed his hand from his back waistband, apparently drawing his weapon.

We viewed the video several times, in slow motion, and we are unable to determine, conclusively, whether Edwards opened fire before or after Stewart appeared to draw his weapon. What the video does show conclusively is that Edwards opens fire within a second of his bodycam capturing a frame that depicts Stewart holding a pistol-shaped object in his right hand (R. Doc. 109-17, p. 2.) Hardnett saw a pistol fly from Stewart’s hands after the shooting started, but neither he nor Fenn saw a gun in Stewart’s hands before the shooting. After the shooting, the officers discovered that Stewart had been holding a BB gun that resembled a real pistol. For purposes of the officers’ motion for summary judgment, the district court assumed that Edwards did not see a gun before he fired his weapon the first time.[ii]

Davis filed suit, as the Administrator of Stewart’s estate, against Deputy Edwards and the two city officers that arrived as back-up.  She alleged that the deputy and officers (1) violated the Fourth Amendment before the shooting by unlawfully stopping Stewart without reasonable suspicion, and (2) used excessive force in violation of the Fourth Amendment when the deputy shot Stewart.

The district court granted qualified immunity for the deputy and officers in this case.  Davis appealed the grant of immunity to the Eleventh Circuit Court of Appeals.  The issues on appeal were (1) whether the deputy and officers were entitled to qualified immunity for the Fourth Amendment claim regarding the pre-shooting stop of Stewart and (2) whether the deputy and officers were entitled to qualified immunity on the Fourth Amendment excessive force claim for shooting Stewart.

The court first noted the standard for qualified immunity.  Qualified immunity applies to government officials engaged in a discretionary function.  The decision to stop a person and to use force against a suspect involves an officer’s use of judgment and discretion and, as such, is a “discretionary function.”  This means the burden to overcome qualified immunity shifts to the plaintiff.  To overcome qualified immunity, the plaintiff must establish (1) that the defendants (the deputy and officers) did in fact violate the Fourth Amendment, and (2) the law was “clearly established” such that another reasonable officer in the same situation would have known that the actions committed violated the Fourth Amendment.

The court then set out to determine if the deputy and officers were entitled to qualified immunity for the pre-shooting stop of Stewart.  The court first discussed the law relevant to this issue and stated

[L]aw enforcement officers may seize a suspect for a brief, investigatory Terry stop where (1) the officers have a reasonable suspicion that the suspect was involved in, or is about to be involved in, criminal activity, and (2) the stop ‘was reasonably related in scope to the circumstances which justified the interference in the first place. United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (quoting Terry, 392 U.S. at 19-20, 88 S. Ct. at 1878-79). The reasonable suspicion standard “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 676 (2000). . . We consider the totality of the circumstances when determining whether reasonable suspicion existed and note that “[d]efensive behavior toward police is a relevant factor in this inquiry.” Id. at 1186-87. When an officer asserts the defense of qualified immunity to a claim of an unconstitutional investigatory stop, “the issue is not whether reasonable suspicion existed in fact, but whether the officer had ‘arguable’ reasonable suspicion to support an investigatory stop.” Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). Thus, the relevant inquiry is whether the officers’ seizure of Stewart prior to the shooting was supported by “arguable reasonable suspicion.”[iii]

Summed up, an officer needs “reasonable suspicion” to justify a Terry stop.  However, in the context of qualified immunity, an officer is entitled to qualified immunity if the officer has “arguable reasonable suspicion.”  This means that even if the officer lacked actual reasonable suspicion, he is entitled to qualified immunity from suit if another reasonable officer in the same situation could have believed that reasonable suspicion was present to justify the stop.

The court then applied the relevant facts to the rules above.  First, Deputy Edwards received information that Stewart was involved in erratic behavior and was seen waving a gun on a public roadway.  Second, as the deputy approached, Stewart spotted him and fled into the woods onto someone else’s property.  Based on these two facts, the court of appeals concluded that Deputy Edwards had at least arguable reasonable suspicion to suspect that Stewart was involved in criminal activity and posed a threat to other people in the area.  This authorized the deputy to detain and question Stewart.  Therefore, the court held that Deputy Edwards was entitled to qualified immunity.  The two city officers who were defendants in this suit were also granted qualified immunity, as they were not even on scene during this initial stop.

The court then set out to examine the second issue, whether the deputy and officers were entitled to qualified immunity regarding the Fourth Amendment excessive force claim for shooting Stewart.  The plaintiff argued that Deputy Edwards shot at Stewart before he ever saw Stewart with a weapon (the replica BB pistol).  The deputy’s body camera footage was not clear as to whether the deputy fired before seeing Stewart with the replica BB pistol or after seeing the weapon.

Regarding whether the deputy and officers were entitled to qualified immunity, court stated that the question that they must answer is

[W]hether it would have been clear to a reasonable officer that shooting Stewart under these circumstances would have been a violation of his Fourth Amendment right.[iv]

The court then noted the facts known to the deputy and officers at the time of the shooting.  First, Stewart was seen holding a gun and acting erratically along a roadway at the time the deputy was dispatched.  Second, the deputy knew that Stewart was mentally imbalanced and had, at time previous, acted violently.  Third, when the deputy ordered Stewart to show his hands and turn around, Stewart did not comply.  Fourth, as seen on the body camera, when the deputy asked Stewart where his gun was located, he did not respond, but rather reached his hand behind his back toward his waistband.  Fifth, at this point, the deputy pointed his weapon at Stewart and ordered him to show his hands; Stewart did not comply, but rather kept his hand behind his back.  The court then stated that these facts provided Deputy Edwards with probable cause to believe that Stewart posed a danger to himself and to officers on the scene, whether he saw the gun or not. 

The court went on to state

Edwards was in a precarious position that necessitated an immediate decision. He was not required to wait any longer before using deadly force. See Shaw v. City of Selma, 884 F.3d 1093, 1100 (11th Cir. 2018) (explaining that under clearly established law, when a suspect does not comply with an officer’s commands, the officer is not required to wait until the moment a suspect uses deadly force to stop the suspect); Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (“[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.” (quoting Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007))); Garczynski v. Bradshaw, 573 F.3d 1158, 1169 (11th Cir. 2009) (“[W]here orders to drop [a] weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.” (quotation marks omitted)).

Notwithstanding the tragic nature of the shooting, we conclude that it would not have been clear to a reasonable officer that the shooting was unreasonable under the circumstances. Edwards had to act quickly to subdue an unstable and potentially dangerous suspect. We do not view his actions with “the 20/20 vision of hindsight.” Jones v. Fransen, 857 F.3d 843, 852 (11th Cir. 2017) (quotation marks omitted).[v]

As such, the court of appeals concluded that Deputy Edwards did not violate Stewart’s clearly established constitutional rights, and therefore was entitled to qualified immunity.  Further, the city officers did not fire any shots and were also entitled to qualified immunity.

Therefore, the court of appeals affirmed the decision of the district court.

______________________________________________

Citations

[i] No. 18-11695 (11th Cir. Decided August 14, 2019 Unpublished)

[ii] Id. at 3-5

[iii] Id. at 8-9 (emphasis added)

[iv] Id. at 11

[v] Id. at 11-12 (emphasis added)

By |2020-04-16T12:12:03+00:00April 15th, 2020|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.