On October 21, 2021, the Fifth Circuit Court of Appeals of decided Irwin v. Santiago[i], in which the court examined whether officers that shot at a fleeing suspected drunk driver were entitled to qualified immunity. The relevant facts of Irwin are as follows:
On June 8, 2018, Irwin was driving under the influence of alcohol and marijuana in Garland, Texas, when, after being distracted by his girlfriend’s children in the backseat, he ran off the road, hit a tension wire, and drove a short distance into a cemetery enclosed by a chain-link fence.[ii]
After coming to a stop, Irwin reversed back out into the street. Stopped in traffic just ahead of Irwin were Garland City Police Officers J. Santiago and R. Roberts. As Irwin was reversing, the officers got out of their marked vehicle with their weapons drawn. Officer Roberts approached Irwin’s vehicle from the rear on the driver’s side, while Officer Santiago approached from the front. Both officers gave Irwin verbal commands to stop his vehicle.
At this point, Irwin’s account and the officers’ diverge. According to Irwin, as his vehicle came to a stop after he reversed back into the street, Officer Santiago was standing “toward the front driver’s side” and Officer Roberts was “toward the back driver’s side.” Neither officer “was positioned directly in front or in the pathway of Irwin’s vehicle.” Irwin then turned his steering wheel to the right, away from Officer Santiago and toward the sidewalk. He began to “slowly roll his vehicle forward.” Officer Santiago was near the left side of the vehicle as it passed by on the curb, while Officer Roberts stood in the roadway to the back of Irwin’s vehicle and in the adjacent lane. As Irwin passed near Officer Santiago, having already driven past Officer Roberts, both officers began shooting. Multiple bullets struck Irwin’s vehicle, shattering the driver’s side front window. Two bullets hit Irwin in the arm and leg. Irwin continued driving away and was later apprehended in a parking lot. As a result of the shooting, Irwin now has a metal plate in his right arm and a bullet still lodged in his left leg. He has been permanently disfigured.”[iii]
Irwin sued Officers Santiago and Roberts and alleged they used excessive force in violation of the Fourth Amendment when they shot him. The district court granted the officer’s qualified immunity, holding that the law was not clearly established. Irwin appealed the grant of qualified immunity to the Fifth Circuit Court of Appeals.
The court first discussed qualified immunity. To defeat the officer’s motion for qualified immunity, the plaintiff must show (1) that the officers violated his rights under the Fourth Amendment, and (2) that the law was “clearly established” such that any reasonable officer in the same situation would have known that the conduct was unlawful. The court of appeals also stated
To be clearly established, it is not enough that the right, as a general matter, exists. The law must also establish that the particular conduct of the defendant that is at issue violates that right. “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”[iv]
In other words, general constitutional principles alone do not amount to “clearly established” law for the purpose of defeating an officer’s qualified immunity. Rather, there must be precedent similar enough to the alleged misconduct in the case at hand to make the unlawfulness apparent to any reasonable officer. One additional way to defeat qualified immunity when the law is not clearly established by precedent is for a plaintiff to show that any reasonable officer would have recognized the unlawfulness of the conduct based on obvious clarity that the conduct was prohibited by the Constitution; however, this was not applicable in Irwin’s case.
The court then set out to examine whether shooting Irwin was a violation of the Fourth Amendment. First, the court noted the applicable legal principles and stated
It has long been the case that using deadly force to stop a fleeing suspect can violate the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 20-21, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). Whether an officer’s use of deadly force is unconstitutional depends on whether it is objectively reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Courts consider several factors in answering this question in the context of fleeing vehicles, the “most important” of which is “whether the suspect poses an immediate threat to the safety of the officers or others.” Id. at 396; see also Malbrough v. Stelly, 814 F. App’x 798, 803 (5th Cir. 2020).[v]
The court also observed that the officers were the only pedestrians in the area at the time of the shooting so the crux of the issue before the court is whether Irwin posed an immediate threat of death or serious bodily injury to the officers. The court discussed that the most relevant considerations regarding this issue are (1) the limited time the officers had to respond to a threat, and (2) the closeness of the officers to the projected path of the vehicle. Specifically, the court stated
[T]here are two particular facts that have emerged as highly relevant to determining whether a moving vehicle poses an immediate threat to a police officer: “the limited time the officers had to respond and ‘the closeness of the officers to the projected path of the vehicle.'” Hathaway v. Bazany, 507 F.3d 312, 321 (5th Cir. 2007) (quoting Waterman v. Batton, 393 F.3d 471, 479 (4th Cir. 2005)).[vi]
In Irwin’s case, the court observed, based on body camera video from the officer’s that seventeen seconds elapsed from the time the officers exited their vehicle to the shooting, as Irwin drove past.
However, the court also noted that, like the district court, they believe there is sufficient evidence to show a genuine issue of material fact regarding whether Officer Santiago was in immediate danger from Irwin’s vehicle. At this stage of the litigation, the court must view the facts in light most favorable to the plaintiff therefore, viewing the evidence in a light most favorable to the plaintiff’s version of events, the court stated the evidence could be construed to show that the officer was outside of the path of the vehicle, even though he was close to the vehicle.
As such, the plaintiff has met the first prong to defeat qualified immunity.
The court then set out to determine of the law was clearly established such that any reasonable officer would have known he was violating the Fourth Amendment by using deadly force.
The court of appeals noted that there were only two cases found that were applicable to Irwin’s case. The first case involved an officer who shot a car that was driving away from him and was “three to four houses down the block” in distance from the officer.[vii] In the second case, an officer approached a parked car from behind and when the car fled, the officer shot into the rear bumper.[viii]
The court of appeals then discussed how both Lytle and Flores involved officers who were located behind the suspect vehicles that were moving away from the officers when they fired, whereas in Irwin’s case, Officer Santiago was standing, at least generally, near the projected path of the vehicle. Further, the court noted Fifth Circuit precedent where an officer shot at a car that was moving directly at the officer and no constitutional violation was found. As such, the Fifth Circuit held that the law was not clearly established that it would be a constitutional violation for Officers Santiago and Roberts to use deadly force under the circumstances.
Therefore, the court of appeals affirmed the decision of the district court granting qualified immunity for the officers because the law was not clearly established.
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Citations
[i] No. 21-10020 (5th Cir. Decided October 21, 2021)
[ii] Both parties relied on video evidence taken from Officer Santiago’s bodycam and from a nearby gas station. They may be viewed at:
(1) https://www.ca5.uscourts.gov/opinions/unpub/21/21-10020-BodyCam.mp4;
(2) https://www.ca5.uscourts.gov/opinions/unpub/21/21-10020-Surveillance.mp4.
[iii] Id. at 2-3
[iv] Id. at 5 (internal citations omitted)
[v] Id. at 5-6 (emphasis added)
[vi] Id. at 6 (emphasis added)
[vii] Lytle v. Bexar County (TX), 560 F.3d 404 (5th Cir. 2009)
[viii] Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004)
