On April 21, 2021, the Fifth Circuit Court of Appeals decided Batyukova v. Doege[i], which involved a deputy who shot an unarmed, stranded motorist who refused to follow verbal commands, used profanity at the deputy, and reached for her waistband behind her back. The relevant facts of Batyukova, taken directly from the case, are as follows:
Brandon Doege was a deputy of the Bexar County, Texas Sheriff’s Office who worked in the county’s adult-detention center. He was not a patrol officer and had not undergone the same training as patrol officers. He was, though, commissioned as a peace officer and had received basic training for that role.
Shortly before midnight on June 28, 2018, Deputy Doege was driving westbound on U.S. Highway 90 on his way home from a shift. He was in his uniform and driving his personal vehicle, which was equipped with red and blue police-style lights. After he crossed the line from Bexar County into Medina County, Deputy Doege encountered Batyukova’s vehicle stopped in the left-hand lane of the highway. Deputy Doege activated his red and blue lights and parked behind her so he could render aid. At that time, he called 911 and informed the Medina County dispatcher that he was an off-duty deputy, that he had encountered a vehicle in the middle of the road with its hazard lights on, that he was in his personal vehicle with red and blue lights, and that he had not yet approached the vehicle.
Batyukova then began to exit her vehicle. Deputy Doege opened his door and yelled out to Batyukova, “let me see your hands” and “get out of the vehicle.” She stepped out of the vehicle, which prompted Deputy Doege to yell “put your hands on the hood.” Instead of complying with the commands, Batyukova gave Deputy Doege the middle finger, shouted “f**k you,” and said that she hated America. Still on the line with 911, Deputy Doege asked the dispatcher to send a police unit.
It is undisputed that, over the course of the short encounter, Batyukova yelled “f**k you,” “f**k America,” and “I hate America.” The parties dispute whether Batyukova also said “death to America” and “you’re going to f**king die tonight.” Deputy Doege testified that Batyukova made those statements and that they contributed to his fearing for his life, but Batyukova denies doing so.
After requesting a police unit, Deputy Doege again yelled “put your hands on the hood.” He also asked her “what is going on” as she continued to shout expletives. After ignoring almost every command Deputy Doege gave, Batyukova began to walk towards Deputy Doege’s vehicle. Deputy Doege quickly put his vehicle in reverse and backed up to maintain distance.
Batyukova stopped her approach when Deputy Doege exited his vehicle and drew his weapon. Standing behind his door, Deputy Doege yelled “get down now” and “let me see your hands.” At that point, with a cigarette in one hand, Batyukova reached her other hand towards the waistband of her pants. Her hand went behind her back and disappeared from Deputy Doege’s view. An instant later, Deputy Doege fired five shots. Bullets struck her wrist, leg, and abdomen.
The video evidence shows that, immediately after shooting, Deputy Doege told the dispatcher “shots fired, shots fired . . . she reached behind her back.” In his deposition, he testified that it was the combination of her saying “you’re going to f**king die tonight” and her hand reaching behind her back towards her waistband that made him fear for his life. According to his statement to the Medina County Sheriff’s Office, when Batyukova “reached behind her towards her waistband,” Deputy Doege “thought she was reaching for a weapon to kill [him]” and “was in fear for [his] life.”
After the incident, Batyukova told news reporters that she was attempting to “moon” Deputy Doege. Similarly, she told Medina County investigators that she was attempting to show Deputy Doege her “beautiful a**.” In her deposition nearly two years later, she contradicted her previous accounts and claimed that she never attempted to moon Deputy Doege. Regardless, it is conclusively established by deemed admission that Batyukova “reached toward[s] [her] waistband because [she] intended to lower [her] pants in order to display [her] buttocks to Deputy Doege.” . . .
[A] Medina County deputy then approached Batyukova, determined that she was breathing and responsive, and stayed with her until EMS arrived. EMS arrived about 15 minutes after she was shot. Batyukova had several gunshot wounds, a fractured wrist, and an exposed bone. She had also lost approximately 1,500 mL of blood. She survived her wounds.[ii]
Batyukova sued Deputy Doege and alleged, among other things, excessive force under the Fourth Amendment for pointing his weapon at her, and excessive force under the Fourth Amendment for shooting her. The district court granted summary judgment for the deputy and other defendants and held that use of force did not violate the Fourth Amendment. Batyukova appealed the grant of summary judgment to the Fifth Circuit Court of Appeals. [Note: This article will only cover the Fourth Amendment use of force claims.]
At the outset, the Fifth Circuit discussed qualified immunity, which protects government officials from suit in circumstances where the government official, such as a law enforcement officer, exercises his discretionary authority. Use of force situations involve discretionary authority and implicate qualified immunity. In order for a plaintiff to defeat qualified immunity, the plaintiff must show (1) that the officer violated her constitutional rights, and (2) that the right was clearly established such that another reasonable officer in the same situation would have know he was violating the plaintiff’s rights. In order to show a right was clearly established, a plaintiff can show a case, or line of relevant cases, of an officer acting in similar circumstances, where the conduct was held to violate the constitution. Additionally, a plaintiff can also argue that it should have been obvious to any reasonable officer that the conduct violated the constitution.
The court then examined legal principles that are relevant to the issue of whether Deputy Doege violated the Fourth Amendment when he pointed his gun at, and shot, Batyukova. The court stated
The reasonableness of an officer’s use of force “requires careful attention to the facts and circumstances of each particular case.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). This usually includes consideration of ”the severity of the crime at issue,  whether the suspect poses an immediate threat to the safety of the officers or others, and  whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. In cases involving the use of deadly force, though, “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) (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)). Stated differently, “[a]n officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
“[W]e are careful to avoid ‘second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.'” Garza, 943 F.3d at 745 (quoting Ryburn v. Huff, 565 U.S. 469, 477, 132 S. Ct. 987, 181 L. Ed. 2d 966 (2012)). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. [iii]
The court of appeals then examined the undisputed facts that are relevant to the use of force issue in Batyukova’s case. The relevant facts are as follows:
- Batyukova ignored Deputy Doege’s commands to show her hands and to place her hands on the hood of her vehicle.
- Batyukova shouted profanity at Deputy Doege and gave him the middle finger.
- Batyukova started walking toward Deputy Doege, which caused him to reverse his vehicle to maintain distance.
- Batyukova failed to comply with Deputy Doege’s command to “get down.”
- Batyukova reached behind her back, toward her waistband, with her hand out of view of the deputy.
The district court determined that a reasonable officer in Deputy Doege’s situation could have believed that Batyukova was a threat to his safety, and the decision to use deadly force was reasonable under the Fourth Amendment. As such, the deputy was entitled to qualified immunity because the plaintiff was unable to establish a constitutional violation, which is the first prong needed to defeat qualified immunity.
The court of appeals stated that rather than decide the first prong of the qualified immunity analysis, they would examine and decide the case based on the second prong, particularly whether the law was clearly established that Deputy Doege’s conduct was a violation. Under this analysis, the court stated
To overcome qualified immunity in this case, Batyukova must show that clearly established law prohibited using deadly force against a person who (1) repeatedly ignored commands, such as to show her hands, to place her hands on the hood of her vehicle, or to get down; and then (2) reached her hand behind her back towards her waistband, which the officer perceived to be a reach for a weapon to use against him.[iv]
The court then examined numerous cases cited by Batyukova. The court stated that Batyukova failed to identify clearly established law that prohibited Deputy Doege use of deadly force in this incident.
In fact, the court of appeals cited to two cases that supported the use of deadly force in Batyukova’s case. Specifically, the court stated
More factually comparable are two precedents in which the use of deadly force was held to be reasonable because the officer had reason to perceive a threat of serious harm. In one, it was reasonable to use deadly force when the officer perceived a suspect’s sudden reach towards his waistband “to be consistent with a suspect retrieving a weapon.” Salazar-Limon v. City of Hous., 826 F.3d 272, 275, 278 (5th Cir. 2016). We have also held that the use of deadly force is reasonable when a person, “in defiance of the officers’ contrary orders, reached under the seat of his vehicle and appeared to retrieve an object that [one officer] reasonably believed to be a weapon.” Manis, 585 F.3d at 845. Similarly to the facts of this case, the person in Manis was not suspected of criminal activity but, rather, was approached because his vehicle was idling on railroad tracks at an intersection. Id. at 841. Though there are factual distinctions to be made, both Salazar-Limon and Manis involved the use of deadly force following a person’s reach for what reasonably could have been a weapon. In both, the use of deadly force was held to be reasonable.[v]
As such, the court affirmed the grant of qualified immunity for Deputy Doege.
[i] No. 20-50425 (5th Cir. Decided April 21, 2021)
[ii] Id. at 1-6
[iii] Id. at 9-11 (emphasis added)
[iv] Id. at 13
[v] Id. at 15-16 (emphasis added)