On October 26, 2021, the Fifth Circuit Court of Appeals of decided Harmon v. City of Arlington[i], which serves as an excellent review of the law related to the use of deadly force when an officer is an unwilling, exterior passenger of a fleeing vehicle. The relevant facts of Harmon are as follows:
A City of Arlington police officer pulled over O’Shae Terry and his passenger, Terrence Harmon, for driving a large SUV with an expired registration tag. The officer approached the car and asked Terry and Harmon for identification. After taking their information, the officer advised them that she smelled marijuana coming from the car and, as a result, had to search it. In the meantime, another police officer, Defendant Bau Tran, arrived on the scene and approached the car from the passenger’s side next to a curb. While the first officer went back to her patrol car to verify Terry’s and Harmon’s information, Tran waited with the two men. Tran asked them to lower the windows and shut off the vehicle’s engine, and Terry at first complied. Dashcam and bodycam videos capture what happened next.
After some small talk, Terry started raising the windows and reaching for the ignition. Tran immediately shouted “hey, hey, hey, hey,” clambered onto the running board of the SUV, and grabbed the passenger window with his left hand. Tran reached through the passenger window with his right hand and yelled, “hey, stop.” Tran retracted his right hand and rested it on his holstered pistol. Then Terry fired the ignition and shifted into drive. Just after the car lurched forward, Tran drew his weapon, stuck it through the window past Harmon’s face, and shot 5 rounds, striking Terry four times.
Terry lost control, careened across the opposite lane, and jumped the curb. The force of the SUV hitting the curb knocked Tran off and onto the street. As Tran rolled over the asphalt, the car’s rear tires just about hit Tran’s flailing limbs. Harmon then gained control of the SUV, got it back onto the street, and stopped it. An ambulance took Terry to the hospital, but he did not survive.”[ii]
The administratrix of Terry’s estate and Harmon (the plaintiff’s) filed suit against Officer Tran and the City and alleged that Tran violated their rights under the Fourth Amendment by using deadly force. Officer Tran was granted qualified immunity by the district court. The plaintiff’s appealed the grant of qualified immunity to the Fifth Circuit Court of Appeals.
The court of appeals first noted that to defeat Officer Tran’s qualified immunity, the plaintiff’s must show (1) that he violated the plaintiff’s constitutional rights, and (2) the right was clearly established at the time of the alleged violation.
The court then set out to determine if Officer Tran violated Terry’s constitutional rights when he shot Terry as Terry accelerated the vehicle as Officer Tran stood on the running board of the vehicle.
The court of appeals first noted general principles that they consider when evaluating an excessive force claim. First, the court stated that they evaluate the use of force from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[iii] Second, the court stated that they must consider that police are “forced to make split-second judgments” in “tense, uncertain, and rapidly evolving” situations about what amount of force to use in a particular situation.[iv]
The court also stated
In evaluating whether the officer used “excessive” force, courts consider 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. at 396 (citation omitted). The threat-of-harm factor typically predominates the analysis when deadly force has been deployed. Accordingly, this court’s cases hold that “[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 to the officer or to others.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (citation omitted). A court must “be cautious about second-guessing [the] police officer’s assessment” of the threat level. Ryburn v. Huff, 565 U.S. 469, 477, 132 S. Ct. 987, 991-92, 181 L. Ed. 2d 966 (2012) (per curiam).[v]
Thus, the court of appeals stated
The question for this court is whether Officer Tran could reasonably believe that Terry posed a serious threat of harm.”[vi]
The court of appeals then referred to the video of the incident for the facts of the ten-seconds prior to the use of deadly force. The court recounted the facts as follows:
- Tran was talking to Terry and Harmon;
- Terry abruptly rolled up the windows and reached for his keys;
- Tran shouted, “hey, hey, hey, hey..” and “hey stop!”
- Tran grabbed the passenger window and stepped onto the running board of the SUV;
- Terry started the vehicle, put it in gear, and started to drive off as Tran, with his firearm still holstered, was hanging onto the passenger window while standing on the narrow running board;
- A second after the vehicle lurched forward, Officer Tran drew his firearm and shot at Terry five times, hitting him four times.
The court of appeals stated that the above ten-second interval is what they must consider to determine if Officer Tran reasonably believed he was at risk of serious physical harm.
The court then held that Officer Tran’s belief was reasonable. First, the court noted that after the shooting, Officer Tran fell from the vehicle into a busy street, with Terry’s SUV almost running him over. This illustrated the risk faced by Officer Tran.
Second, Terry argued that Officer Tran was not in danger because he was not “in the path” of the vehicle. He cited caselaw that held if an officer is not in the path of the vehicle, the force is unreasonable. The court of appeals stated that this is not a proper analogy and clearly Tran was in danger.
Third, Terry argued that Officer Tran could have just stepped off the running board and let him go. However, the court noted that that argument judges the officer with 20/20 hindsight, as the Supreme Court has previously stated the courts must not do.
Lastly, Terry argued that Officer Tran shot too soon, before exhausting other options. The court noted
The speed with which an officer resorts to force can factor into the reasonableness analysis, but only where officers deliberately, and rapidly, eschew lesser responses when such means are not only plainly available but also obviously recommended by the situation. See Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012) (considering the allegation that officers “immediately resorted to taser and nightstick” against a mostly compliant suspect “without attempting to use physical skill, negotiation, or even commands.”).[vii]
However, the court of appeals also noted that the above principle does not apply in Terry’s incident. First, Tran did give Terry a verbal command to stop. However, Terry failed to stop and instead accelerated with Tran standing on the running board of his vehicle. The court stated that Officer Tran had to act quickly and the speed in which he acted did not render his use of deadly force unreasonable.
Finally, the court of appeals held
[T]he plaintiffs have cited no case in which a law enforcement officer, holding onto a suspect’s car as it drove away, has been held to have used unconstitutionally excessive force to restrain the driver. In sum, taking the facts in the light most favorable to the plaintiffs and drawing every reasonable inference in plaintiffs’ favor, Tran’s use of deadly force was not excessive under the circumstances because he could reasonably apprehend serious physical harm to himself as an unwilling passenger on the side of Terry’s fleeing vehicle.[viii]
The court also examined whether the law was clearly established. The court noted that the plaintiff’s have not shown any caselaw that clearly established that deadly force against Terry would be unreasonable.
As such, Officer Tran is entitled to qualified immunity for his use of deadly force against Terry.
Harmon, the passenger in Terry’s vehicle also sued Officer Tran for excessive force, even though force was not used against him. Harmon argued that his rights were violated because Officer Tran fired his weapon in close proximity to Harmon’s face. This is a bystander theory of liability. The court of appeals stated
Harmon’s bystander theory fails because “there is no constitutional right to be free from witnessing . . . police action.” Grandstaff v. Borger, 767 F.2d 161, 172 (5th Cir. 1985). Bystander excessive force claims can only succeed when the officer directs the force toward the bystander—that is to say, when the bystander is not really a bystander. See Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir. 1986).[ix]
For the Fourth Amendment to apply, the officer must have intentionally applied force to Harmon. In this case, Officer Tran did not use any force on Harmon.
As such, Harmon’s suit is dismissed because (1) Officer Tran is entitled to qualified immunity and (2) Harmon failed to state a valid Fourth Amendment claim.
Lastly, the court of appeals considered the claim against the City of Arlington. A claim against a municipality must state a valid underlying constitutional violation. Since Officer Tran was granted qualified immunity because he did not violate the plaintiff’s rights, there is no underlying constitutional violation and the claim against the city must fail.
Therefore, the court of appeals affirmed the decision of the district court.
[i] No. 20-10830 (5th Cir. Decided October 26, 2021)
[ii] Id. at 2-3
[iii] Id. at 6
[v] Id. (emphasis added)
[vi] Id. at 7
[vii] Id. at 10 (emphasis added)
[viii] Id. at 10-11 (emphasis added)
[ix] Id. at 16 (emphasis added)