On March 23, 2021, the Eleventh Circuit Court of Appeals decided Thorkelson v. Marceno[i], which involved a woman, in an emotional crisis, that was shot and killed by police when she pointed, what they later learned was a BB gun, at an officer. The facts of Thorkelson, taken directly from the case, are as follows:
Late one afternoon, Thorkelson called 911 from her apartment in Fort Myers Beach, but immediately ended the call. Deputy Matthew Woodby drove to Thorkelson’s two-story apartment building and knocked on the front door of each unit without receiving any response. Thorkelson called 911 a second time and said, “Yea, please send police I’m in very, very danger.” But when the officer asked for an address, Thorkelson replied, “I don’t know. Are you f***ing kidding me? F*** you. F*** you.”
One of Thorkelson’s neighbors, T.J. Bryant, pulled into the parking lot and observed Deputy Woodby walking toward him. Bryant noticed that Thorkelson was pointing what appeared to be [*3] “a cock .22 single [rifle] or a pellet gun” at the deputy. Bryant thought Thorkelson might harm the deputy and warned him, “She’s got a gun, she’s got a gun.” Bryant parked his car while the deputy retreated to his patrol car and requested that dispatch send backup officers.
Deputy Woodby could see Thorkelson holding something in her hands while standing in a screened area of the porch of her second-floor apartment, but a sun drape on her porch obstructed his view. Deputy Woodby asked Thorkelson to put her hands on the mesh screen to verify if she was armed. After a brief silence, Thorkelson yelled, “You’re going to have to kill me or I’m going to kill you mother f***er.” The deputy also heard a clicking noise coming from Thorkelson’s porch that sounded like a gun being fired without any ammunition.
Sergeant Paul Nader and other officers joined Deputy Woodby at his car and watched Thorkelson for about an hour as she paced around her porch and walked in and out of her apartment. Because the officers’ line of vision was impaired by distance and the drape on Thorkelson’s porch, Sergeant Nader shouted for Thorkelson to identify what she was holding. She replied, “I have a gun.” The officers notified dispatch that Thorkelson had a “long gun.”
Officers formed a perimeter around Thorkelson’s apartment while Sergeant Nader retrieved his sniper rifle from his vehicle. Sergeant Nader intended to use the scope on his rifle to determine what type of gun Thorkelson possessed. But by the time he returned to Deputy Woodby’s car, Thorkelson had retreated inside her apartment and closed her blinds. Sergeant Nader changed locations several times seeking an unobstructed view of Thorkelson’s apartment. He finally found a second-story apartment about 25 feet from Thorkelson’s building and positioned his rifle on a window facing her porch. Captain Casale retrieved his MP5 shotgun from his patrol car and occupied a carport located about 70 feet away from Thorkelson’s apartment that had a clear view of her porch.
Throughout the standoff, officers attempted to communicate with Thorkelson. Two officers called Thorkelson’s cellular telephone repeatedly. She alternated hanging up and cursing loudly at the callers. She spoke once with Deputy Adam Linn and stated, “Stay away from me. I got a rifle. I’m gonna shoot you.” From his balcony, Bryant heard Thorkelson standing on her porch threatening to shoot the officers. Bryant implored Thorkelson to “drop her gun,” but she never responded to his remarks. After Thorkelson stopped answering her cellular telephone, Deputy Linn used his public address system to instruct her to put down her gun and to come outside.
The officers were unable to identify Thorkelson’s gun. The owner of the apartment occupied by Sergeant Nader reported that Thorkelson appeared to pump her gun as if it was a BB gun. Thorkelson’s husband called from work and said that Thorkelson had a BB gun. Thorkelson’s brother, Wes Kalles, also reported that Thorkelson had a BB gun and that he was driving to her apartment, but the dispatch operator did not convey Kalles’s message to the officers. Sergeant Nader saw Thorkelson poke a gun barrel through her blinds, but he could not determine through the scope on his rifle whether her gun was a rifle or a BB gun.
Thorkelson moved the blinds covering the sliding glass door to her porch, which provided Sergeant Nader an unobstructed view inside her apartment. Nader announced over the radio clipped to his shirt that Thorkelson had a rifle.
Thorkelson slid open the glass door and walked onto her porch. She raised her gun to her shoulder with her finger on the trigger and aimed down at Deputy Linn. As Sergeant Nader returned his gaze to his scope, Deputy Casale shot Thorkelson. The bullet passed through Thorkelson’s chest, and she died instantly. Officers who entered her apartment found a Crosman model 760 Pumpmaster BB gun lying on the porch near Thorkelson.[ii]
Mr. Thorkelson, as representative of his wife’s estate, subsequently sued the deputies for excessive force. The district court held that the sheriff and Captain Casale were entitled to qualified immunity. The plaintiff appealed the grant of qualified immunity to Captain Casale to the Eleventh Circuit Court of Appeals.
On appeal, the court noted that to overcome qualified immunity, the plaintiff must show (1) that the deputy violated the Fourth Amendment by using excessive force, and (2) that the law at the time of the act, was clearly established such that a reasonable officer in the same situation would have known the conduct was unconstitutional.[iii]
The court of appeals then set out to determine if Captain Casale violated the Fourth Amendment when he shot Mrs. Thorkelson. The court noted the general legal principles that apply and stated
The Fourth Amendment right to be free from unreasonable searches and seizures “encompasses the right to be free from excessive force during the course of a” seizure. Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009). Under federal and state law, an officer’s use of force is evaluated for objective reasonableness. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). “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.” Id. at 396-97. The force the officer employs “must be reasonably proportionate to the need for that force,” as measured by, among other factors, the danger posed to officers on the scene. Shaw v. City of Selma, 884 F.3d 1093, 1099 (11th Cir. 2018).[iv]
Additionally, specifically related to the use of deadly force, the court noted
When an “officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, use of deadly force does not violate the Constitution.” Penley, 605 F.3d at 851.[v]
The court of appeals then examined the facts relevant to whether Captain Casele reasonably believe that Mrs. Thorkelson posed a threat of serious physical harm. First, Mrs. Thorkelson was acting erratically and refused repeated requests to put the gun down and exit her apartment. The court stated
Non-compliance of this sort supports the conclusion that use of deadly force was reasonable.[vi]
Second, the BB gun that Thorkelson possessed resembled a lethal firearm, and she described it as such. Third, Thorkelson threated “to kill” and “shoot” officers. Fourth, Captain Casele and other deputies exercised patience with Mrs. Thorkelson, and did not use deadly force until she pointed the gun at Deputy Linn. The court stated
Even though “an officer is not required to wait until an armed and dangerous [person] has drawn a bead on the officer or others before using deadly force,” Captain Casale did. Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997). Officers did not use any force during the lengthy period that Thorkelson was unapproachable and menacing. Captain Casale shot Thorkelson only when she posed an imminent threat to a defenseless officer. [vii]
Fifth, the court noted that, while Captain Casale did not warn Mrs. Thorkelson before he used deadly force, he was not required to give a warning in that situation because the “delay might have cost Deputy Linn his life.”[viii]
Based upon the above factors, the court held that Captain Casale’s use of deadly force was reasonable under the Fourth Amendment.
The court also examined the plaintiff’s argument that, since the “weapon” Mrs. Thorkelson possessed, was merely a BB gun, the use of deadly force was excessive.
The court first noted
Reasonableness is judged based on “only the facts that were knowable to the defendant officers” at the time. White v. Pauly, 137 S. Ct. 548, 550, 196 L. Ed. 2d 463 (2017). As the Supreme Court has explained, we must refrain from “second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.” Ryburn v. Huff, 565 U.S. 469, 477, 132 S. Ct. 987, 181 L. Ed. 2d 966 (2012); see Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007). Thorkelson was holding a BB gun, but that fact was not evident to the officers. See Carr, 338 F.3d at 1269 (A reasonable but mistaken belief that probable cause exists for using deadly force is not actionable under § 1983.”).[ix]
The court then examined facts relevant to whether Captain Casale possessed a reasonable belief that Mrs. Thorkelson possessed a firearm, rather than a BB gun. First, the court noted that Bryant, Thorkelson’s neighbor, thought Thorkelson possessed a firearm, evidenced by the fact that he told Deputy Woodby to take cover. Second, although the resident of the apartment being used by Deputy Nader told him that he thought she pumped the gun like a BB gun, the appearance of the gun resembled a rifle and Thompson stated she had a rifle. Third, While Mr. Thorkelson reported to 911 that his wife only had a BB gun, he was not on scene and could not observe what she was holding. Lastly, the deputies never had a clear, unobstructed view of Mrs. Thorkelson’s gun. As such, the court of appeals held
Captain Casale had to make a split-second decision whether to shoot an unpredictable woman armed with a dangerous weapon aimed at a fellow officer. He was not required “to wait ‘and hope for the best.'” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quoting Scott v. Harris, 550 U.S. 372, 385, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)) (alteration adopted). Captain Casale’s use of deadly force did not violate the Fourth Amendment or Florida law.[x]
Therefore, the Eleventh Circuit affirmed the grant of summary judgment in favor of the sheriff and Captain Casale.
[i] No. 20-13097 (11th Cir. Decided March 23, 2021 Unpublished)
[ii] Id. at 2-6
[iii] Id. at 7
[iv] Id. at 8 (emphasis added)
[v] Id. (emphasis added)
[vi] Id. at 9
[vii] Id. (emphasis added)
[ix] Id. at 9-10 (emphasis added)
[x] Id. at 10 (emphasis added)