In Williams v. Boehrer,[i] the Eleventh Circuit Court of Appeals examined whether two deputies that shot a man with a knife were entitled to official immunity from suit under state law. The relevant facts of Williams, taken directly from the case, are as follows:
David Nave Jr. started a fire in his bedroom in an apartment that he shared with his mother, Janice Williams. Williams tried to call 911 to report the fire and inform the dispatcher that Nave might still be inside, but before she could complete the call, several neighbors told her that they had already called 911 and reported the fire.
While Williams attempted to call 911 and waited on the emergency responders, Nave took a knife from the apartment and walked to a nearby convenience store. Nave approached a woman in the parking lot of the convenience store with the knife and demanded that she give him money. The woman fled to her van, and Nave yelled, “Give me your money! If not, I’m going to kill you.”
Nave then entered the convenience store and threw wine bottles at the cashier’s window. Nave approached an owner of the store aggressively and shouted at him. He then threw a glass container of sugar to the floor. While Nave destroyed property in the store, the owners of the store locked him inside. Nave continued to throw wine bottles. One of the wine bottles broke a window next to the front door of the store, and Nave left the store through that window. Nave then broke the windshield and slashed the tires of the store owners’ car.
Lieutenant Roland Boehrer and Deputy Kirby Threat of the Sheriff’s Office of Clayton County were on duty when Nave started the fire and then went on a rampage at the convenience store. Boehrer and Threat were having their cars washed [**4] near the fire and Nave’s rampage. Threat heard an emergency call about the fire and told Boehrer that they were not far down the road from the fire. Boehrer had completed the cleaning of his vehicle and proceeded first toward the scene of the fire. When Boehrer reached the convenience store, a man in a white van flagged him down. The man pointed to Nave and said something along the lines of “He did all of this stuff here. That is your suspect. You need to go arrest him.” Boehrer contacted the dispatcher and attempted to confirm that Nave matched the description of the suspect. The white van pulled behind Boehrer’s vehicle, and the driver again pointed and said that Nave was the suspect. Nave yelled an expletive and spit on the passenger side of the van.
Boehrer approached Nave, and Nave pulled out a knife. Boehrer ordered Nave to drop the knife, drew his taser, and pointed it at Nave. Instead of complying with Boehrer’s command, Nave fled. Boehrer informed the dispatch operator that Nave had a knife and chased him into the parking lot of a nearby abandoned convenience store. By then, Threat had arrived at the convenience store, and he joined the pursuit of Nave. Boehrer warned Threat [**5] that Nave had a knife. The officers yelled at Nave to stop, but he continued to flee. At some point in the pursuit, Threat drew his handgun.
The officers testified that Nave turned around and began slashing the knife at Threat. The officers also testified that Threat lost his footing when he tried to retreat. Boehrer then fired his taser at Nave. Because only one prong connected to Nave, the taser did not cause him to drop the knife or stop his attack.
Threat then fired his handgun at Nave. Threat hit Nave once in the chest, once in the elbow, and once in the back, and Nave fell to the ground. Threat kicked the knife away, and Boehrer checked Nave for a pulse and asked the dispatcher to send [*894] an ambulance. Nave died in the parking lot.
Monique Anderson, who lived in a nearby apartment, testified that she watched from the balcony of her apartment as the officers chased Nave. Anderson testified that Nave tried to run away from Boehrer and continued to run when Boehrer ordered him to stop. She testified that she then heard four shots and saw Threat with his gun out.
The Georgia Bureau of Investigation prepared a report on the shooting of Nave. The report stated that the taser prong attached [**6] to the back of Nave’s clothing. The report also stated that Nave was shot once to the torso from the back, once to the elbow from the back, and once to the chest from the front. More blood was pooled around the wound to his torso from the back. A pathologist for the Georgia Bureau of Investigation, Laura Darrisaw, testified that it was her opinion, with a reasonable degree of medical certainty, that the shot to the torso from the back struck Nave before the shot to his chest.[ii]
Williams, who is Nave’s mother, filed suit on behalf of Nave’s estate. She alleged various state law civil claims and Fourth Amendment claims. The defendant’s deputies and the sheriff had the case removed from state court and sent to federal court since there were constitutional claims. Ultimately, Williams asked the court to dismiss all federal claims. The case remained in federal district court regarding the state law claims against the deputies for shooting Nave.
As a background, under Georgia law, for an officer or deputy to be entitled to official immunity from suit, he or she must not have acted with “actual malice” or an “actual intent to injure” beyond the legitimate purpose of arrest. The district court held that the plaintiff did not allege sufficient facts to prove the deputies acted with “actual malice” in shooting Nave, but there were sufficient facts to allow a jury to decide whether they acted with an “actual intent to injure.” As such, the district court denied the deputies official immunity. They subsequently appealed to the Eleventh Circuit Court of Appeals.
The court of appeals then set out to determine if the deputies were entitled to official immunity. First, the court noted that the deputies were engaged in a discretionary act. A discretionary act is one which
[C]alls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.”[iii]
The court stated that deciding whether to fire a gun at a suspect is considered a discretionary act.
Second, the court noted that, under state law, when an officer or deputy is engaged in a discretionary act, he or she is entitled to official immunity from a lawsuit unless the officer acts with “actual malice or with an actual intent to cause injury in the performance of their official functions.”[iv]
Third, the court examined the Georgia statute that provides law enforcement officers the authority to use deadly force to apprehend suspects in certain situations. This statute, OCGA §17-4-20(b), states
A law enforcement officer] may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.[v]
The court then noted that the deputies suspected that Nave started a fire in an apartment. Further, Deputy Boehrer saw Nave in a possession of a knife and radioed this information to dispatch. He also warned Deputy Threat that Nave had a knife. As such, both deputies “reasonably believed that Nave, a suspected felon, possessed a deadly weapon.”[vi] Then, when the deputies pursued Nave, he used the knife in a slashing motion at Deputy Threat. This posed an “immediate threat of physical violence to the officer.”[vii] Additionally, the deputies were told by a witness that Nave was the suspect, that he had yelled at him and spit on his van, and pulled out a knife when Boehrer approached him. Thus, the court of appeals stated that the deputies had “probable cause to believe that Nave had committed a crime involving the infliction or threatened infliction of serious physical harm.”[viii]
As such, the court of appeals held that the deputies were justified in their use of deadly force based on OCGA §17-4-20(b) and were entitled to official immunity in the civil suit.
[i] 530 Fed. Appx. 891 (11th Cir. 2013)
[ii] Id. at 2-6
[iii] Id. at 14
[iv] Id. at 13
[v] Id. at 15 (quoting OCGA §17-4-20(b))
[viii] Id. at 16