On April 2, 2020, the Eleventh Circuit Court of Appeals decided L.T. v. Owens et al.[i], which serves as an excellent review of the law related to deadly force.
The facts of this case are lengthy; however, because use of force cases are very fact-specific, it is beneficial to include all of the facts. The relevant facts of Owens, taken directly from the case, are as follows:
On the afternoon of March 24, 2015, three uniformed Smyrna police officers—Owens, Mark Cole, and Chris Graeff (collectively, the “Smyrna officers”)—and three uniformed Cobb County police officers—Daniel Mangold, Bryan Moore, and Robert Dorsey (collectively, the “Cobb officers”)—went to serve an arrest warrant on Thomas at a Goodyear store in Cobb County, Georgia, where Thomas worked. The parties agree that the following aerial image accurately depicts the Goodyear store and its environs on that date. Like the parties, we rely on the directions represented on the image, though we do not vouch for their accuracy.1
Before arriving at Goodyear, the officers met in a nearby Publix parking lot to plan an approach. During this meeting, the officers reviewed a copy of the warrant, which was for technical probation violations, and discussed pertinent information about Thomas from a law-enforcement database, including that he had “violent tendencies” and a prior history of “aggravated assault/fleeing or attempting to elude.”
After the briefing, the Smyrna officers drove to Goodyear in their respective marked patrol cars and parked in a line, effectively blocking the only way to enter or leave the premises in a car without jumping a curb. They exited their cars and split up. Meanwhile, Mangold and Moore approached Goodyear on foot from the Publix parking lot and positioned themselves near the south end of the premises. Dorsey arrived at Goodyear soon after and parked beside the Smyrna officers’ cars, completely blocking the driveway.
The plan was for the Smyrna officers to attempt to execute the warrant at Goodyear while the Cobb officers remained outside in case Thomas attempted to flee on foot. Cole went to talk with some employees who were outside on the east of the building; Graeff approached the Goodyear lobby; and Owens remained near the patrol cars. The Goodyear employees told Cole that Thomas was driving a white Maserati—a customer’s car—that had just pulled around behind the building. Around this time, Owens heard what sounded like a “fastly accelerating vehicle” from behind the building.
What followed over the two minutes was a cat-and-mouse game contained within the Goodyear parking lot. Thomas made five passes behind the building on its west side in the Maserati, three going forward and two going backward. Throughout this time, the officers chased the car on foot and, each time the car stopped and changed directions, ordered Thomas at gunpoint to stop and exit the car. Thomas was shot and killed on the fifth pass.
Thomas made the first pass just as the officers were arriving. Beginning near the front (east) side of the building, Thomas drove the Maserati clockwise around the building, ultimately ending up on the north end, his escape blocked by the line of police vehicles. Cole yelled out that Thomas was in the Maserati, and the Smyrna officers ran to meet it on the north end of the building. When they arrived, they ordered Thomas at gunpoint to stop and exit the car.
On the second pass, Thomas reversed, went around the northwest corner, and accelerated backward towards the southwest corner, where he stopped the Maserati about ten feet from the place Cobb officer Moore was stationed. Moore, at gunpoint, yelled for Thomas to stop and exit the car. Meanwhile, Cole ran to his truck and released his canine, Paco, believing that Thomas intended to flee on foot. Cole then joined Graeff in running after the Maserati.
The third pass was the opposite of the previous one. Just as Cole and Graeff rounded the northwest corner, they saw the Maserati quickly accelerate towards them down the middle of the paved pathway behind the building. Cole testified that Thomas tried to “run [him] over” and that he had “to jump out of the way” to avoid being hit by the oncoming car, which missed him by about a foot. Graeff testified that the car was coming towards them at “a high rate of speed” and that he “got as tight as [he] could” to the building to avoid the car as it passed. Video evidence2 corroborates their testimony. The video depicts two officers rounding the northwest corner in pursuit of the Maserati. Just after the officers appeared on the video, Thomas accelerated towards the officers and drove between them in very close proximity to one of the officers, who stepped aside when the car passed. Thomas again drove around the northwest corner towards the parked patrol cars and came to a stop along the north end of the building.
On the fourth pass, Thomas reversed and headed back around the building in a counterclockwise direction, ultimately stopping near the southeast corner, where Cobb officer Mangold was located. Meanwhile, the Smyrna officers split up and ran after the Maserati. Video evidence depicts Owens running south on the back (west) side of Goodyear and going out of view near the southwest corner, where the north-facing camera was located. Cole, running in the same direction and holding his canine by the collar, went out of view about seven seconds later. Meanwhile, Graeff testified that he was on the east side of the building when he saw the Maserati accelerate forward after stopping at the southeast corner. He entered a bay door and cut through Goodyear’s interior service area, running to meet the car on the west side.
Thomas was shot and killed on the fifth and final pass. After sitting near the southeast corner for a few seconds, he accelerated the Maserati towards the southwest corner and began to turn. As the car was turning, Owens fired three shots in quick succession into the passenger side of the car, one of which struck Thomas causing his death. The Maserati continued forward, jumping the curb near the northwest corner and coming to rest on the grass. The officers broke the heavily tinted windows using less-lethal force and discovered that Thomas had been shot and was unresponsive. He was pronounced dead at the scene.
The central factual dispute concerns the location of Cole and Owens when Owens fired at Thomas. In Owens’s version, he rounded the southwest corner and saw the Maserati, which was not moving, and ordered Thomas at gunpoint to stop and exit the car. The car then accelerated very quickly at him. Owens stepped back to avoid the oncoming car, which “just barely missed [him],” and then, seeing Cole approach the southwest corner in the path of the turning car, fired three shots into the car’s passenger side. Owens estimated that he began shooting when Cole was about ten feet in front of the car.
Cole’s version of events differed from Owens’s. When the shooting occurred, according to Cole, he was beside the Maserati, not in front of it, and “extremely close” to Owens. Just before the shooting, Cole explained, he had gained control of his dog, which was running loose until then, and began running down the backside of the building towards the southwest corner. He rounded the corner and saw the Maserati begin to accelerate, at which point his testimony becomes unclear. He indicated that, as the car accelerated forward, he “turn[ed] around with [his] dog” and started “going back in the opposite direction.” When asked whether he was “in the path of the car” and whether it was “coming at you,” Cole could not provide a clear answer. He responded that he was “very close to the car” and that it passed by him in “close proximity.” He estimated that he was beside the front passenger window and “going back in that direction” when he heard the first of three gunshots from “right behind [him] on [his] left side.” Cole stressed that he did not know why Owens fired his gun but assumed that Owens “saw something that I couldn’t see.”
The record contains no other witness testimony about the shooting. Nevertheless, Plaintiffs propose a third version of events regarding the final pass. Plaintiffs contend that Cole and Owen both had reached the Maserati on the south end and were located on either side of the car when it began to accelerate. Then, according to Plaintiffs, the officers chased after the car, which posed no danger to them, and Owens fired three shots as the car rounded the southwest corner.
In support of this version of events, Plaintiffs cite Cole’s interview with Cobb police investigators after the incident, during which Cole identified the south end of the building as where he struck the driver’s side window of the stopped Maserati with his baton. That, in turn, would place Cole to the side of Thomas’s car on the south end before the final pass. Arguably consistent with this version of events, Cole testified that, after running south around the southwest corner and seeing the Maserati accelerate, he “turned around” and started “going back in the opposite direction”—suggesting that Cole may have been running after the car when Owens opened fire.
Construing the evidence in the light most favorable to Plaintiffs, we can rule out that Cole was in the path of the Maserati when Owens opened fire. Cole testified that he was beside the car when he heard the first gunshot and did not know why Owens shot. We also know that Owens was not in immediate personal danger when he fired at the Maserati, which had passed him. And there were no other officers in the immediate path of the car at the time of the shooting.
As to whether Cole was beside or behind the car when Owens opened fire, we will assume without deciding that a reasonable jury could conclude that neither Owens nor Cole was in imminent danger of being hit near the southwest corner when Owens shot and killed Thomas.[ii] (emphasis added)
Thomas’s estate sued the officers involved in the shooting and the City of Smyrna for violating Thomas’s right to be free from excessive force under the Fourth Amendment. The district court granted summary judgment and qualified immunity to all officers on the Fourth Amendment claim. Thomas’s estate appealed the grant of summary judgment and qualified immunity. [Note: This article will not discuss the state law claims; however, it is noted that they were all dismissed by the district court.]
The General Legal Principles
At the outset, it is important to understand that, when an officer is sued, he is entitled to qualified immunity from suit if he is acting in his discretionary authority. An officer is acting in his discretionary authority if the duty he is performing involves deciding between various options, such as what type of force to use when a suspect resists arrests. Thus, here, the officers were clearly acting within their discretionary authority. In order to defeat the officer’s motion for qualified immunity, the plaintiff must satisfy a two-prong test. First, the plaintiff must show that the officer violated a federally protected right. Second, the plaintiff must show that the law was “clearly established” such that every reasonable officer in the same circumstance would have known that the conduct was unlawful.
Thus, the court set out to determine the first prong of the qualified immunity analysis, particularly whether the plaintiff has shown that the officers violated his rights under the Fourth Amendment by using excessive force. The court of appeals noted the legal principles that control this case. Particularly, the court stated
The particular facts of each case must be analyzed to determine whether the force used was “objectively reasonable” under the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); see Scott, 550 U.S. at 382-83 (the reasonableness of a “use of a particular type of force in a particular situation” must be judged by the specific facts and circumstances confronting the officer). To guide our analysis, we consider three main factors: “(1) the severity of the crime at issue; (2) whether [the suspect] posed an immediate threat to the officers or others; and (3) whether he actively resisted arrest.” Penley v. Eslinger, 605 F.3d 843, 850-51 (11th Cir. 2010); see Graham, 490 U.S. at 396. We also consider whether the officers issued a warning before using deadly force. Penley, 605 F.3d at 850. Nevertheless, there are no “rigid preconditions” for the use of force, and courts “must still slosh [their] way through the factbound morass of ‘reasonableness.'” Scott, 550 U.S. at 382-83.
We consider Owens’s conduct “from the perspective of a reasonable officer on the scene” and without regard to his “underlying intent or motivation.” Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004). In doing so, we must keep in mind that officers face situations that are often “tense, uncertain and rapidly evolving, thereby requiring split-second judgments as to how much force is necessary. Because an officer’s perspective in the field differs from that of a judge sitting peacefully in chambers, we must resist the temptation to judge an officer’s actions with the 20/20 vision of hindsight.” Garczynski, 573 F.3d at 1167 (quotation marks omitted).[iii]
Shooting at Vehicles During Pursuits: When it’s Legal
With these general principles in mind, the court then examined specific caselaw from the Eleventh Circuit related to the use of deadly force against people driving vehicles. The court first noted
With regard to the use of deadly force against an individual who was driving a car, our cases “have . . . consistently upheld an officer’s use of force and granted qualified immunity in cases where the decedent used or threatened to use his car as a weapon to endanger officers or civilians immediately preceding the officer’s use of deadly force.” McCullough v. Antolini, 559 F.3d 1201, 1207 (11th Cir. 2009).[iv]
The court then examined Pace v. Capobianco[v], in which the court upheld the use of deadly force against the driver a vehicle that had just led officers on a dangerous vehicle pursuit. The court stated
We held that, even accepting that Davis did not try to run over the deputies or aim the car at the deputies, the use of force was justified because the officers had reason to believe that the car “had become a deadly weapon with which Davis was armed” and that the “chase was not over.” Id. at 1282. We noted that Davis had previously driven recklessly, threatening serious physical harm, that “Davis’s car was stopped for, at most, a very few seconds when shots were fired: no cooling time had passed for the officers in hot pursuit,” and that Davis had refused to get out of the car. Id. at 1281-82.[vi]
The court also examined Long v. Slaton[vii], which involved the use of deadly force against a suspect that resisted arrest, stolen a police car, and was trying to flee the scene. The court stated
We held that the officer’s decision to use deadly force was reasonable “in the light of the potential danger posed to officers and to the public if Long was allowed to flee in a stolen police cruiser.” Id. at 581. We noted that “the threat of danger to be assessed is not just the threat to officers at the moment, but also to the officers and other persons if the chase went on.” Id. (quotation marks omitted). And we reasoned that, although Long had not yet used the police cruiser as a deadly weapon when the shooting occurred, “Long’s unstable frame of mind, energetic evasion of the deputy’s physical control, Long’s criminal act of stealing a police cruiser, and Long’s starting to drive—even after being warned of deadly force—to a public road gave the deputy reason to believe that Long was dangerous.” Id. at 581-82.[viii]
Thus, precedent shows that, where a suspect uses a car as a weapon or threatens to use a car as a weapon, the Eleventh Circuit typically upholds the use of deadly force as reasonable, as described in the cases above.
Shooting at Vehicles in Pursuits: When it’s Not Legal
However, the court also discussed precedent where a suspect flees but does not use his vehicle as a weapon or threaten anyone with the vehicle. The court stated
[W]here the plaintiff did not use or did not threaten to use his car as a weapon, we have rejected an officer’s use of deadly force.” Morton v. Kirkwood, 707 F.3d 1276, 1283 (11th Cir. 2013).[ix]
The court then discussed Vaughn v. Cox[x], which involved the pursuit of a suspected stolen truck that fled to speeds of about 85 mph in a 70 mph zone. An officer put his police vehicle in front of the truck and applied his brakes. The truck crashed into the rear of the police car and continued to flee, driving 85 mph and staying within its lane. It did not swerve or drive toward other motorists. An officer drove next to the truck and fired three rounds into the truck. The passenger was struck and was paralyzed. The court stated
We concluded that a reasonable jury could find that the use of deadly force was unconstitutional because “[g]enuine issues of material fact remain[ed] as to whether [the truck’s] flight presented an immediate threat of serious harm . . . at the time [the officer] fired the shot.” Id. at 1330. We explained that, under the plaintiff’s version of the facts, “the truck’s lane was clear of traffic,” it did not make any “aggressive moves to change lanes,” and the collision was “both accidental and insufficient to cause [the officer] to lose control.” Id. In short, the suspects were merely speeding by ten to fifteen miles per hour in an attempt to avoid capture. Id. Id. at 1331.[xi]
Analysis of the Case At Hand – Was it legal to shoot Thomas?
The court then set out to apply the general legal principles and caselaw to the facts of the case at hand. The court stated that the issue was
[W]hether a reasonable officer in Owens’s position could have believed that Thomas posed an immediate threat of serious physical harm to police officers or others at the time of the shooting. In other words, would [Thomas] have appeared to reasonable police officers to have been gravely dangerous? [xii]
The court held, for the reasons discussed below, that even if we assume that the officers were to the side of Thomas’s vehicle and not in imminent danger of being hit at the time they fired their weapons, it was reasonable for the officers to believe that Thomas was gravely dangerous, and as such, the shooting did not violate the Fourth Amendment.[xiii]
The reasons for the above holding are discussed below.
First, the officer had probable cause to believe that Thomas used the Maserati as a deadly weapon by threatening serious physical harm to officers on the scene. The evidence showed, including video evidence, that Thomas drove the Maserati around the building, stopped and then, as officers rounded the corner on foot, rapidly accelerated toward them so that they had to take evasive action to avoid being hit. The vehicle passed as close as one foot to one of the officers. This provided the officers with probable cause to believe that Thomas had committed aggravated assault in violation of Georgia law. The court further stated
Although no deadly force was used at that time, it clearly would have been justified. See Singletary v. Vargas, 804 F.3d 1174, 1184 (11th Cir. 2015) (“[I]t is well established that an officer may constitutionally use deadly force when his life is threatened by a car that is being used as a deadly weapon.”); Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir. 2005) (upholding an officer’s use of deadly force against a suspect who slowly—at one or two miles per hour—drove a vehicle toward the officer as he stood between the suspect’s vehicle and a parked car). Owens’s use of deadly force occurred less than one minute later, while Thomas was still dangerously speeding in the Maserati around the Goodyear facility. So this factor supports the reasonableness of Owens’s actions.[xiv]
Second, Thomas actively resisted arrest by fleeing in the Maserati, driving toward officers in an attempt to escape and refusing verbal commands at gunpoint given by officers. The court stated that this weighs in favor of the use of the force being reasonable.
Third, the court stated that the officers had probable cause to believe that Thomas posed an ongoing threat of serious physical harm to officers on the scene. Specifically, the court stated
Plaintiffs stress that, under their version of facts, no officer was in the immediate path of the vehicle at the time of the shooting. But “the threat of danger to be assessed is not just the threat to officers at the moment, but also to the officers and other persons if the chase went on…”
And here, Thomas had shown no signs of giving up the chase or slowing down. He repeatedly ignored officer commands at gunpoint to stop and exit the car. And he evaded apprehension by accelerating back and forth in the Goodyear parking lot, taking tight corners at speeds—on the final pass, according to Plaintiffs’ expert, Thomas averaged 24.79 miles per hour on the backside of the building—that were high enough to pose a threat of serious bodily harm to persons on foot. Meanwhile, at least five officers were in active pursuit of the Maserati on foot, and other employees were on the premises. So, assuming Cole and Owens were outside of immediate danger at the time of the shooting, there were still at least three officers running around on foot. For instance, Graeff testified that, on the fifth pass after the shooting, the Maserati passed in front of him just before he emerged from one of the bay doors on the west wide. Because Thomas had not shown any signs of giving up the chase, the danger posed to the officers, and arguably others on the premises, still existed when Owens fired at Thomas.[xv]
The court went on to explain that while no officer may have been in the direct path of the Maserati at the time of the shooting, the danger was still “sufficiently immediate” under caselaw to make deadly force reasonable, in light of the circumstances faced by the officers. The court stated
While no officer was in the immediate path of the Maserati at the time of the shooting, the danger was sufficiently immediate under our caselaw to make the use of deadly force reasonable under the totality of the circumstances. Under these circumstances, the officers did not have to wait for Thomas to actually hit someone to take action. See Long, 508 F.3d at 581 (“[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.”); Pace, 283 F.3d at 1281-82. “Even if in hindsight the facts show that [the officers] perhaps could have escaped unharmed, an objectively reasonable law enforcement officer could well have perceived that the moving vehicle was being used as a deadly weapon, especially after the driver had been repeatedly ordered to stop.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (citation and quotation marks omitted). Based on the chaotic and quickly unfolding circumstances in the Goodyear parking lot, we cannot say it was unreasonable for Owens to use deadly force.[xvi]
Therefore, plaintiff did not satisfy the first prong of the test to defeat the officer’s qualified immunity.
The court also noted that, for the sake of argument, if one were to assume the shooting was not reasonable under the Fourth Amendment, an examination of the second prong of the qualified immunity test reveals that the law is not clearly established such that a reasonable officer would have known deadly force was [hypothetically] unlawful under those circumstances. As such, the officers would still be entitled to qualified immunity.
Thus, the Eleventh Circuit affirmed the district court’s grant of qualified immunity for the officers in this case.
[i] 2020 U.S. App. LEXIS 10387
[ii] Id. at 2-10
[iii] Id. at 14-15 (emphasis added)
[iv] Id. at 15-16 (emphasis added)
[v] 283 F.3d 1275, 1281-82 (11th Cir. 2002).
[vi] Owens at 16
[vii] 508 F.3d 576, 578-79 (11th Cir. 2007).
[viii] Owens at 17
[xi] Owens at 18-19
[xii] Id. at 19
[xiv] Id. at 21
[xv] Id. at 22-24
[xvi] Id. at 24 (emphasis added)