On February 11, 2020, the Seventh Circuit Court of Appeals decided Smith v. Adams et al.[i], in which the court examined whether officers used excessive force under the Fourth Amendment when they shot a fleeing suspect’s car and tased him after he crashed. The relevant facts of Smith, taken directly from the case, are as follows:
Late one evening, officers from the Evansville Police Department responded to a 911 call about shots fired and a group of people fighting. Officers Adams and Hollins were first on the scene and saw three people, including Smith, arguing near a parked car. They approached the group with their flashlights out and guns drawn and ordered the individuals to be quiet, show their hands, and step away from the car. Two complied, but Smith did not hear the order, got into the car, and started the engine. The officers yelled at him to stop and get out. Smith, however, accelerated—so rapidly that the tires squealed and left marks on the road. Adams and Hollins were in Smith’s path, so they fired their guns at the tires to stop the car (Adams three times and Hollins once). The shots hit the car, causing Smith to crash into a nearby garage.
Officer VanCleave arrived shortly after the crash, and Hollins and Adams approached the car with their guns out. They again ordered Smith to show his hands and exit the car, but he did not comply and instead threw something out of the window. Hollins attempted to open the car door to get Smith out; at the same time, Smith moved his hands down towards his waist (to unfasten his seatbelt, he says). The officers again ordered Smith to keep his hands outside of the car and get out, and Smith shouted, “Pull me out, pull me out.” VanCleave and Hollins then attempted to pull Smith out of the car window, with VanCleave holding Smith’s arms to keep his hands in view. Midway through the effort, Smith started forcibly pulling away from the officers, hooked his feet inside the car, and appeared to reach for something. In response, VanCleave deployed his Taser on Smith, and the officers were finally able to pull him out of the car.
Once Smith was on the ground, the officers continued ordering him to give them his hands, but Smith kept them under his stomach. After a brief struggle, they handcuffed him, and he apologized for his behavior. But he soon began cursing and struggling, so officers took him to the ground again. (No officer says so, but audio from the bodycam suggests that they used the Taser on him a second time.) Smith continued to curse and threatened to fight the officers. They eventually subdued him and placed him in custody. About an hour after his arrest, after Smith complained that they had beaten him, officers took him to the hospital for an examination. Smith denied any injuries, but a nurse tended to his eye and removed a Taser prong from his back. Later, at the jail, Smith discovered a second prong.
When searches of his person and car yielded cocaine and marijuana, Smith was charged with drug possession as well as attempted aggravated battery for driving his car at the officers. A jury found him guilty of the drug counts but not guilty of attempted aggravated battery.[ii]“
Smith subsequently sued the officer’s involved for excessive force under the Fourth Amendment related to shooting at his car, the use of the taser after he crashed and denial or delay of medical treatment after the incident. The district court granted the officer’s motions for summary judgment and dismissed the case. Smith appealed to the Seventh Circuit Court of Appeals.
It is important to note that the court of appeals is required to view disputed facts in a light most favorable to the plaintiff (Smith) unless the disputes are contradicted by the evidence, such as video and audio recordings of the incident. In this case, the court of appeals chose to rely heavily upon the officer’s video and audio on body cameras and vehicle cameras and other sworn testimony of both the officers and Smith.
There were two issues on appeal. The first issue was whether Officer’s Adams and Hollins used excessive force under the Fourth Amendment when they shot at Smith’s car since Smith did not have a gun, was not attempting to flee (according to his version of events), and received no warning prior to being fired upon.
The court of appeals first noted the law relevant to this issue and stated
We evaluate the reasonableness of an officer’s action from “the perspective of a reasonable officer on the scene,” not through “the 20/20 vision of hindsight.” Id. at 396. Relevant factors to evaluate include the severity of the crime at issue, whether the suspect posed an immediate threat to the officer’s safety, and whether the suspect was resisting arrest or attempting to flee. See id.[iii]
The court then examined the facts known to the officers, at the time of the incident, that are relevant to the issue and undisputed. First, the officers were responding to a 911 call regarding “shots fired.” As such, the court observed it was reasonable for officers to believe Smith may be armed. Second, when they encountered Smith and the two other men, the officers ordered the men to show their hands. The two men with Smith complied and Smith did not comply. Rather than comply, Smith entered a car, disobeying the officer’s orders. While Smith asserts that he did not hear the officers, it was reasonable for the officers to believe he heard them since the other men heard and complied. Third, Smith accelerated so rapidly in the car that tires squealed and he left marks on the ground. The court said that it was reasonable for the officers to believe that Smith may hit them, which is why they fired their guns to stop the car. While Smith emphasized that he was not subsequently convicted for assault in the criminal case, the court of appeals noted that in the civil case, Smith’s intent is not relevant. Rather, what matters is
Whether the officers reasonably believed that they faced death or serious bodily injury—the predicate to using deadly force. See Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); Horton v. Pobjecky, 883 F.3d 941, 949 (7th Cir. 2018).[iv]
The court held that the officer’s belief that Smith posed that deadly threat were reasonable and that the fact that Smith was unarmed and did not intend to hit the officers was irrelevant. Only the facts known to the officers at the time of the shooting are used to evaluate the reasonableness of the force used; information learned afterwards is hindsight and not relevant. The court stated
Smith’s arguments that he was not armed and that he was convicted only of low-level offenses are based on hindsight, but only facts known to the officers at the time of the seizure matter in the reasonableness determination. See Graham 490 U.S. at 396; Fitzgerald v. Santoro, 707 F.3d 725, 732-33 (7th Cir. 2013). And they fired only four shots at the bottom of the car; there is no dispute that they did not aim for Smith. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014) (firing 15 shots at suspect fleeing in car was reasonable to end risk posed by his reckless driving).[v]
The second issue on appeal was whether the officers used excessive force under the Fourth Amendment on Smith when they allegedly “dragged him out of the car, used a Taser on him, and wrestled him to the ground.”[vi]
Smith alleged that he was not resisting arrest. However, the court of appeals noted the body camera video from the officers clearly contradicts Smith’s allegation. While the court stated that the video footage was often unclear, the audio of recorded on the camera was clear regarding the officer’s perception of the incident. Particularly, the court observed that, after the crash, Smith continued to disobey officers’ commands and refused to keep his hands in view of the officers. He also refused to exit the vehicle. The court noted that at this point the officers still did not know if Smith was armed. Smith actually told the officers to pull him out of the car, and when they attempted to do so, he began to forcibly resist their attempt. At this point, an officer used his Taser on Smith and they were able to handcuff him. Once out car, he calmed momentarily and apologized to the officers; however, the court noted that he quickly resumed resisting the officers, cursing at them, and threatening to fight them. The officers took Smith to the ground to control him and based on the body camera footage, the court noted that officers used the Taser a second time. Based on the above facts, the court of appeals held
Overall, the evidence shows that he was violently resisting arrest, so no reasonable jury could find that the officers acted unreasonably when they forcefully subdued him. See United States v. Norris, 640 F.3d 295, 303 (7th Cir. 2011) (use of Taser reasonable when suspect disobeyed commands and displayed intent to violently resist police).[vii]
As such, the court of appeals affirmed summary judgment in favor of the officers as the officers acted reasonably under the Fourth Amendment.
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Citations
[i] No. 19-1816 (7th Cir. Decided February 11, 2020 Unpublished)
[ii] Id. at 3-4
[iii] Id. at 4 (emphasis added)
[iv] Id. at 4-5 (emphasis added)
[v] Id. at 5
[vi] Id.
[vii] Id.
