On November 25, 2019, the Fifth Circuit Court of Appeals decided Garza v. Briones et al.[i], in which the court examined whether officers who shot a man armed with what was later learned to be a BB gun, violated the Fourth Amendment. The relevant facts of Garza, taken directly from the case, are as follows:
At about 1:43 a.m. on August 14, 2014, several officers, including defendants, responded to a 911 call from a truck stop. The caller informed the officers that a man—later identified as Garza—was sitting alone in front of the truck stop’s bar playing with a pistol and holding what appeared to be a wine bottle and a plastic bag.
Santiago Martinez arrived first on the scene and observed Garza holding a black handgun. Martinez drew his service weapon, slowly advanced toward Garza, and repeatedly ordered him to drop the gun. Garza did not do so and instead continued to move the firearm around in different directions while making facial gestures at Martinez. At that time, Garza did not have his finger on the trigger and was not pointing the gun at anyone. Martinez took cover, readied his rifle, and radioed the other responding officers to advise them of the situation.
Shortly thereafter, several other officers—including the remaining defendants—arrived. They observed Martinez continue to give Garza commands to put down the firearm. Garza still did not comply.1 The remaining officers took cover, forming a semi-circle around Garza with their weapons drawn. Several patrol vehicles had their lights flashing.
At 1:49 a.m., Julio Gonzalez (“Gonzalez”) approached Estaban Martinez (“Estaban”), a private citizen completing a “ride along” with Guajardo.
Gonzalez was a security guard at the truck stop but was dressed in shorts and a sleeveless T-shirt. Estaban directed Gonzalez to a nearby officer, Lieutenant Gabriel Rodman. Gonzalez told Rodman that Garza’s pistol was actually a BB gun, which Gonzalez knew because he had held the gun earlier that day. Rodman did not communicate that information to the other officers because he was not able to verify it. Defendants did not speak to Gonzalez, and all believed that Garza’s gun was a real firearm.
At 1:50 a.m., Garza raised his weapon and pointed it in Santiago Martinez’s direction. Martinez yelled at Garza to stop, but he did not do so. Martinez fired his weapon at Garza. The other defendants, fearing that Garza was shooting at Martinez, also fired. They continued to fire until Garza fell to the ground and stopped moving. The shooting lasted about eight seconds. Each defendant fired at least one shot, and sixty-one shots were fired in total. Eighteen shots struck Garza, who died from his wounds.”[ii]
The administrator of Garza’s estate filed suit against the officers involved in Garza’s shooting. The officers filed a motion for summary judgment based on qualified immunity and the district court granted their motion. Garza appealed to the Fifth Circuit Court of Appeals.
The Fifth Circuit first discussed the defense of qualified immunity. The court stated
QI protects “all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam). “[QI] gives government officials breathing room to make reasonable but mistaken judgments. . . .” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
Courts employ a familiar two-part test. Government officials “are entitled to qualified immunity . . . unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)[iii]
The court then discussed the law pertaining to excessive force, as it pertains to deadly force, under the Fourth Amendment. The court stated
Excessive-force claims ordinarily examine the “totality of the circumstances” to determine whether an officer’s actions were objectively unreasonable. Rockwell v. Brown, 664 F.3d 985, 991-92 (5th Cir. 2011). But “[w]hen an officer uses deadly force, our ‘objective reasonableness’ balancing test is constrained.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004). “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.” Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (internal quotation marks omitted).
[W]e look at the case from the perspective of a reasonable officer on the scene, paying careful attention to the facts and circumstances of each particular case.” Escobar v. Montee, 895 F.3d 387, 394 (5th Cir. 2018) (internal quotation marks omitted). We “consider[] only the facts that were knowable to the defendant officers” at the time. White v. Pauly, 137 S. Ct. 548, 550 (2017) (per curiam). And we are careful to avoid “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) (per curiam). . . The reasonableness of deadly force is measured “at the time of the incident.” Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 490 (5th Cir. 2001) [iv]
Thus, if the officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or others, deadly force is reasonable under the Fourth Amendment. The court will view this inquiry from the perspective of a reasonable officer on the scene and consider only the facts known to the officers at the time of the use of deadly force.
With the above principles in mind, the court set out to examine the facts of Garza’s case. The court first discussed the fact that immediately before the shooting, Garza is seen on police dash-cam video raising the gun above the tabletop and pointing it in Officer Martinez’s direction. Additionally, prior to that, Garza refused orders to drop the gun while waving it around and behaving erratically. It was also noted that, although the gun turned out to be a BB gun, the gun looked “almost indistinguishable” from a handgun. The court then stated
Based on those facts—which suggest that the officers thought they were confronting an unpredictable man armed with a dangerous weapon—defendants had probable cause to conclude that Garza posed them a serious threat of physical injury or death. Police officers may use deadly force in those circumstances without violating the Fourth Amendment.[v]
Thus, based on the facts of the case, the court held that the officer’s use of deadly force did not violate the Fourth Amendment.
The court also discussed the fact that, after the shooting, the police discovered that Garza gun was a BB gun. Although a person on the scene, about one minute prior to the shooting, told the lieutenant on the scene, that Garza only had a BB gun, the lieutenant did not pass that information to the other officers because he was unable to verify the information. The court stated that it was reasonable that the lieutenant did not tell the other officers immediately because if he “mistakenly notified” the other officers it was “only a BB gun” it could “greatly increase the dangerousness or even deadliness, of the encounter.”[vi] Further, the shooting took place less than one minute after the lieutenant received the information, thus there was no time for verification.
The plaintiff raised four arguments that he claimed supported his appeal to reverse the grant of summary judgment. First, he argued that there were discrepancies in the officer’s affidavits regarding the incident. The court noted that the discrepancies reflected the fact that officers arrived at different times and had different points of view. Further, the dash-cam video cleared up any dispute as to Garza’s action of raising the gun and pointing it toward Officer Martinez immediately prior to the shooting. Gonzales, the witness that conveyed the information regarding the BB gun, stated that when Garza was shot, he had raised the gun above the tabletop but the gun was pointing downward, and not toward the police. The court stated
[E]ven if the video didn’t directly contradict Gonzalez’s statement, his account would still not create a genuine dispute as to a material fact. A reasonable officer in any of the defendants’ shoes would have believed that Garza posed a serious threat regardless of the direction that Garza was pointing his gun just before he was shot.[vii]
Second, the plaintiff argued that Garza could not hear the officer’s commands because he was wearing headphones. The plaintiff attempted to argue that the inquiry should be why Garza did not comply, but the court disagreed. The court stated that relevant inquiry in an excessive force case is whether a reasonable officer could conclude that a suspect’s non-compliance was a threat to their safety. The court also noted that the record contained no evidence that indicated the officers were aware that Garza was wearing headphones.
Third, the plaintiff argued that, after Officer Martinez fired the first shot, it was unreasonable for the other officers to shoot based on their belief that Garza had fired a shot at Martinez. In other words, the plaintiff argued the officers (other than Martinez) should have waited to determine who fired first before they fired. However, the court stated
Plaintiff points to no authority suggesting that defendants were required to wait to return fire until they could determine that Garza, and not Martinez, had fired the first shot. That is unsurprising. [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.[viii]
Fourth, the plaintiff argued that the total number of shots, sixty-one (61), fired by officers, and the number of times Garza was hit, eighteen (18), amounted to excessive force. To this argument, the court stated
Plaintiff’s position is wholly undercut by Plumhoff [v. Rickard]. In Plumhoff, 572 U.S. at 777, police officers fired fifteen shots in ten seconds to prevent a suspect from fleeing in his car. The petitioner contended that the sheer number of shots rendered the force used excessive. Id. The Supreme Court rejected that position, instead stating that “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Id.[ix]
In Garza’s case, the officers fired sixty-one (61) shots in eight seconds, and stopped firing when Garza fell to the ground. This does not prove the force used was excessive.
As such, the court of appeals affirmed the district court’s grant of summary judgment to the officers in this case.
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Citations
[i] No. 18-40982 (5th Cir. Decided November 25, 2019)
[ii] Id. at 2-3
[iii] Id. at 4
[iv] Id. at 5-6 (emphasis added)
[v] Id. at 6
[vi] Id. at 7
[vii] Id. at 9
[viii] Id. at 10 (emphasis added)
[ix] Id. at 11 (emphasis added)
