On December 23, 2020, the Eighth Circuit Court of Appeals decided McElree v. City of Cedar Rapids et al.[i], in which the court examined whether police used excessive force during an officer involved shooting. The relevant facts of McElree, taken directly from the case, are as follows:
In October 2015, Investigators Brandon Boesenberg and Bryson Garringer were conducting surveillance in a Walgreens parking lot. The officers sat in an unmarked vehicle to avoid detection. Part of their stakeout included electronically tracking purchases of pseudoephedrine in the area.
The officers noticed a pickup truck in the back of the parking lot. Two people who the officers believed had connections to methamphetamine manufacturing were in and about the truck. Annabelle Santos (one of the truck’s occupants) exited the truck, entered the Walgreens, and purchased pseudoephedrine at 9:55 p.m. The officers identified her using the NPLEx as she left the store and headed back to the truck. At 9:59 p.m., the officers were alerted to another pseudoephedrine purchase across the street at a different pharmacy. The officers saw a person who they recognized as involved with methamphetamine walk up to the truck from the direction of the other pharmacy. Soon after, the officers saw Gossman exit the truck, purchase pseudoephedrine in the Walgreens, and return to the truck. While the truck was parked, the officers observed a flurry of movement inside and near the truck and a flashlight shining from inside.
The officers began to suspect the individuals observed in and about the truck were purchasing pseudoephedrine to make methamphetamine. The truck soon left the parking lot, dropped off a passenger at a gas station across the street, and drove through the city. Boesenberg and Garringer followed the truck, as did Sergeant Nathan Juilfs who responded to a request for assistance from the other officers. The officers decided to stop the truck because they suspected it contained evidence of methamphetamine manufacturing. After receiving a call for a K9 unit, Officer Lucas Jones arrived at the scene with his police dog, Bane.
When the officers approached the truck, they asked Dillon Graf and Santos to exit and began interviewing them. After being prompted, Graf produced a knife, a methamphetamine pipe, and some prescription pills.
While the other officers questioned Graf and Santos, Sergeant Juilfs questioned Gossman through the truck’s open back window. After hearing about Graf’s pipe, Juilfs told Gossman he would be searched. Gossman repeatedly reached toward his own waist. Juilfs ordered Gossman to put his hands up, and Juilfs removed a knife on a lanyard from around Gossman’s neck. Graf then informed Garringer that there was a shotgun in the back seat. Several of the officers drew their firearms and told Gossman to exit or he would be removed from the truck. Gossman refused.
Gossman then got out of the truck, but when his feet hit the ground, he started moving. With his weapon still drawn, Boesenberg used his other arm to attempt to restrain Gossman. However, to avoid firing accidently, Boesenberg quickly released him. Gossman took off running. Bane, the service dog, and Officers Jones and Garringer chased him.
Jones and Garringer both noticed that the entire time Gossman ran, he held the front of his waistband. After a short chase, Bane caught up with Gossman and bit his arm. After running a few more steps, Gossman fell, twisted, and drew a handgun from his waistband. Garringer yelled “gun.” He testified that he believed Gossman fired at him and that he heard a clap and saw a flash of light. Garringer stopped abruptly, slipped, and fell to the ground. Jones heard the shout and saw Garringer fall before popping back up. Jones and Garringer then fired repeatedly at Gossman, until they determined he was no longer a threat. Gossman was pronounced dead at the scene. The medical examiner’s report and further investigation revealed that Gossman was shot 24 times. An investigation also revealed Gossman had methamphetamine in his system, and his 9mm handgun was loaded but had not been fired.[ii]
Gossman’s family filed suit against the City and officers. The plaintiff’s alleged that the officer’s violated the Fourth Amendment because they lacked reasonable suspicion to stop the truck and detain Gossman and used excessive force when they shot him. They also alleged various state law claims. The district court granted summary judgment in favor of the City and officers and dismissed the case. The plaintiff’s appealed the grant of summary judgment.
On appeal, the plaintiff’s raised three main arguments. First, they argued that the officers lacked sufficient reasonable suspicion to stop the truck in which Gossman was a passenger. Second, they argued that the officers lacked reasonable suspicion to detain Gossman. Third, they argued that the officer’s use of deadly force was excessive force under the Fourth Amendment.
The court of appeals first examined whether the officers had sufficient reasonable suspicion to stop the truck. The court discussed the legal standard needed to stop the truck, reasonable suspicion, and stated
[F]or an investigatory stop, “the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.'” United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).
As a standard for initiating an investigative stop, reasonable suspicion hovers well below preponderance of the evidence and need not rise to the level of probable cause. Arvizu, 534 U.S. at 274. It is a “commonsense, nontechnical concept” that requires more than a hunch. Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). Officers must have “‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” Id. at 696 (quoting Cortez, 449 U.S. at 417-18). We look “to the totality of the circumstances, ‘allow[ing] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.'” United States v. Dortch, 868 F.3d 674, 680 (8th Cir. 2017) (alteration in original) (quoting Arvizu, 534 U.S. at 273).[iii]
The court then examined the facts relevant to this issue. First, the court noted that the officers observed two or three separate pseudoephedrine purchases in a twenty-minute time span. While pseudoephedrine is a legal substance, purchases such as that are indicative of criminal activity, particularly the manufacture of methamphetamine. The court further noted that
[L]awful activity can—and often does—help form the basis for reasonable suspicion. See, e.g., Ameling, 328 F.3d at 448 (concluding legal purchases, in addition to other factors, supported a finding of reasonable suspicion); see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (noting “nervous, evasive behavior,” though not illegal, “is a pertinent factor in determining reasonable suspicion”). Activity that does not directly indicate wrongdoing but suggests criminality is highly relevant to a reasonable-suspicion determination. See Sokolow, 490 U.S. at 10 (“‘[I]nnocent behavior will frequently provide the basis for a showing of’ . . . reasonable suspicion.” (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n.13, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983))).[iv]
The second relevant fact to issue at hand is that the police knew that the truck was associated with known methamphetamine manufacturers. While the plaintiff argued that the officers were not certain that Gossman and Santos were in the truck, the court noted that
[R]easonable suspicion does not require certainty, including in the identification context. See Arvizu, 534 U.S. at 274.[v]
Furthermore, the fact that two or three pseudoephedrine purchases took place in twenty minutes by the occupants of the truck enhanced the likelihood that Gossman and Santos were present in the truck.
The third relevant fact to the issue at hand was the suspicious activity and furtive movements by the occupants that the police observed.
The court then held that there was sufficient reasonable suspicion to justify the stop of the truck.
The second issue the court examined was whether the officers had sufficient reasonable suspicion to justify the officer’s first attempt to detain Gossman. The court of appeals stated
During a lawful Terry stop, officers can “take any measures that are reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.” Waters v. Madson, 921 F.3d 725, 737 (8th Cir. 2019) (cleaned up) (quoting United States v. Sanford, 813 F.3d 708, 713 (8th Cir. 2016)). Depending on the circumstances, officers may instruct the driver and passengers to step out of the car, prevent passengers from leaving the scene, and increase restraint proportionate to uncooperative behavior during an investigative detention. See id. at 738; United States v. Smith, 645 F.3d 998, 1001 (8th Cir. 2011).[vi]
The court then looked at the facts relevant to this issue. First, the court noted that an officer had already removed a knife that was hanging around Gossman’s neck. Second, the driver of the truck told the officers that there was a shotgun in the backseat of the truck near where Gossman had been seated. Third, Gossman’s lack of cooperations and sudden, furtive movement when he was in the backseat of the truck also heightened the officer’s concerns that he may be armed and dangerous. Lastly, immediately upon exiting the truck, Gossman struggled with an officer and fled on foot. These facts, taken together provided the officers with sufficient reasonable suspicion to believe that Gossman was armed and involved in criminal activity.
The last issue on appeal was whether the officers used excessive force under the Fourth Amendment when they shot Gossman. Regarding the law related to deadly force, the court of appeals stated
Succeeding on an excessive force claim requires a showing that the officers used unreasonable force “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Swearingen v. Judd, 930 F.3d 983, 987 (8th Cir. 2019) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). When analyzing reasonableness, a court must consider “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.” Id. at 988. The use of deadly force is constitutionally reasonable under the Fourth Amendment “if an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.” Thompson v. Dill, 930 F.3d 1008, 1013 (8th Cir. 2019) (quoting Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012)). That rule covers an officer’s objectively reasonable mistake. Id. Before using deadly force, officers should give “some warning” if it is “feasible.” Dooley v. Tharp, 856 F.3d 1177, 1181 (8th Cir. 2017) (quoting Loch v. City of Lichfield, 689 F.3d 961, 967 (8th Cir. 2012)).[vii]
The plaintiff argued that the police used excessive force because (1) Gossman never fired his gun at the officers, and (2) the police did not provide Gossman a warning before using deadly force.
The court of appeals noted that once Bane, the police canine, caught Gossman and grabbed his arm, Gossman drew a handgun and
That drawn handgun “pose[d] a threat of serious physical harm” to the officers and justified their use of deadly force against Gossman.[viii]
The court then stated that, in light of the fact that Gossman drew the handgun, which posed a “threat of serious physical harm to the officers,” it is irrelevant that the officers were mistaken in the their belief that Gossman fired at them. The court further stated
[D]eadly force was authorized because Gossman pulled a gun and thus the officers were “faced with an apparently loaded weapon.” Smith v. City of Brooklyn Park, 757 F.3d 765, 772 (8th Cir. 2014) (“[N]o constitutional or statutory right exists that would prohibit a police officer from using deadly force when faced with an apparently loaded weapon.” (quoting Sinclair v. City of Des Moines, 268 F.3d 594, 596 (8th Cir. 2001).[ix]
Regarding the officers failure to give a warning before they shot Gossman, the court noted that officers are required to give a warning, if feasible. However, the court also noted that when “the decision to shoot must be made in a ‘split-second,’ as here, it is reasonable to forgo a warning.”[x]
The court then held that the officers did not violate the Fourth Amendment when they used deadly force against Gossman.
As such, the court of appeals affirmed the decision of the district court granting summary judgment in favor of the officers and the City. Further, the for the same reasons discussed in the Fourth Amendment claims, the court also dismissed the state law tort claims in favor of the officers and the City.
[i] No. 19-2323 (8th Cir. Decided December 23, 2020)
[ii] Id. at 2-5
[iii] Id. at 6-7 (emphasis added)
[iv] Id. at 9
[vi] Id. at 10 (emphasis added)
[vii] Id. at 11-12 (emphasis added)
[viii] Id. at 12 (emphasis added)
[ix] Id. at 12-13(emphasis added)