On September 7, 2021, the Eleventh Circuit Court of Appeals of decided Tillis v. Brown[i], which serves as an excellent review of constitutional law as it pertains to the use of deadly force after a high-speed chase when the driver threatens the officer with the vehicle. The relevant facts of Tillis are as follows:
Christian Redwine lived with Nancy Sorrells—his custodial grandmother—and Fred Levins in Columbus, Georgia. Levins was a car salesman and kept several vehicles at his home. One of these vehicles was a Pontiac G6.
On the night of November 5, 2016, Redwine was at his home with his cousin, Hunter Tillis, his friend, Hannah Wuenschel, and Wuenschel’s infant son. Sometime after Levins went to sleep, Redwine, Tillis, and Wuenschel left Wuenschel’s baby at the house and drove away with the Pontiac so that Redwine could speak with his girlfriend. When they were unable to find his girlfriend at her home, they decided to drive around town looking for her. Redwine drove, Wuenschel sat in the front passenger’s seat, and Tillis sat in the driver’s-side back seat.
Levins woke up at about 1 a.m. on November 6 and realized that his Pontiac was missing, as were Redwine, Tillis, and Wuenschel. At 3:34 a.m., he called 911 and reported that his Pontiac had been taken. The police called him back a few minutes later to ask if he knew who was responsible, and he said it was his grandson, his grandson’s cousin, and another girl who had left her baby at his home “for three solid hours.” Levins also told the police that his grandson was 17, that he had been in jail three times in the last year, and that he “just got out.” Finally, he told the police that he wanted the three individuals who had taken his Pontiac “in jail.”
About an hour later, an unmarked police vehicle spotted the Pontiac and began following it. As soon as the police vehicle turned on its blue lights, the Pontiac sped off. As Tillis testified, “the blue lights lit up, and as soon as they lit up, Christian smashed the gas.” Wuenschel testified that “he just slammed it back and we went.” Other police vehicles joined the chase and pursued the Pontiac through commercial and residential areas of Columbus, including when the car drove the wrong way down a one-way street. At one point, the police lost sight of the Pontiac. But as soon as they spotted it parked on the side of the road, it drove off and headed toward the Alabama border. Tillis testified that Redwine was “driving . . . crazy” “at a high rate of speed,” he “bl[ew] through a couple of stop signs,” and “he had to lock the brakes up every time he came to an intersection just to turn.” Tillis also testified that Redwine “was just panicking,” “[h]e didn’t know what to do,” and “[h]e was saying he didn’t want to go back to jail.” In her testimony, Wuenschel described how she was “screaming” and “crying” because Redwine “was going way too fast” and she was afraid that the Pontiac was going to “wreck” or to “hit somebody else.”
As the chase continued into Phenix City, Alabama, Officer Allan Brown took over as the lead police vehicle. He called in regular updates to the 911 dispatcher and reported that the Pontiac was driving at speeds up to 107 miles per hour. The dash camera [video from his police cruiser shows the Pontiac veering between lanes and running at least one red light.
The Pontiac exited the highway at about 70 miles per hour and crashed into bushes on the side of the road. By that time, the chase had lasted 13 minutes and 40 seconds and had covered 14.6 miles. Officer Brown reported that the Pontiac was “wrecked out” and “spinning,” and he told the dispatcher to “[s]tart a rescue.” He parked his vehicle behind and to the right of the Pontiac, at an angle to the right rear bumper, and stepped out to make an arrest.
Seconds after Officer Brown got out of his vehicle, the Pontiac’s reverse lights turned on. Officer Brown began shooting at the Pontiac with his service pistol and continued doing so as the Pontiac drove past him in reverse. He fired a total of 11 shots—the chambered round plus a 10-round magazine—through the back windshield and the rear and front passenger windows. All 11 of the shots were fired as the Pontiac was going in reverse. It rolled across the road and came to a stop. Its engine continued to run and its headlights remained on as Officer Brown faced it. Officer Brown changed magazines and fired another 10 shots at the front of the Pontiac.
About three seconds elapsed during the first round of 11 shots, six seconds elapsed between the two rounds of shots, and another three to four seconds elapsed during the second round of 10 shots. All of the shots in both rounds were fired in fewer than 13 seconds. Tillis and Wuenschel got out of the Pontiac and onto the ground, and Officer Brown held them at gunpoint until backup arrived. Officer Brown reported to the dispatcher that shots had been fired and that the Pontiac had “tried to run [him] over.” Redwine died from his gunshot wounds, and Tillis and Wuenschel were both injured.”[ii]
Tillis, the administratrix of Redwine’s estate, and the two other occupants of the vehicle sued Officer Brown, the police chief and the City of Columbus for excessive force in violation of the Fourth Amendment, as well as Fourteenth Amendment and state law claims. This article will only discuss the Fourth Amendment claims, but it is important to note, that if the Fourth Amendment claims are resolved in favor of Officer Brown, then all claims (including those against the chief and city, both federal and state claims) are also resolved in the defendant’s favor.
This district court dismissed all claims against chief. However, the district court only dismissed claims for the officer and the city regarding the pursuit and the first round of eleven shots fired at the plaintiffs. The city denied summary judgment for the officer and the city for the second round of ten shots fired at the plaintiffs, holding that “no reasonable officer would have concluded that the Pontiac posed an imminent threat of serious physical harm to himself or others when he fired” the second round of shots.[iii] The officer and the city appealed the denial of summary judgment and the plaintiffs filed a cross-appeal.
On appeal, the Eleventh Circuit Court of Appeals then set out to determine if Officer Brown violated the Fourth Amendment when he used deadly force. The court noted that if he did not violate the Fourth Amendment, that will resolve all claims against all defendants (the officer, the chief, and the city, both federal and state).
The court of appeals first noted that
Under the Fourth Amendment, we evaluate Officer Brown’s use of deadly force based on an objective standard of reasonableness. Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985); Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012). . . . “The inquiry requires analyzing the totality of the circumstances.” Plumhoff v. Rickard, 572 U.S. 765, 774, 134 S. Ct. 2012, 188 L. Ed. 2d 1056 (2014).[iv]
The court further stated
Our inquiry does not employ “the 20/20 vision of hindsight.” Plumhoff, 572 U.S. at 775 (internal quotation marks omitted). Instead, we “allow 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. “[I]t is reasonable, and therefore constitutionally permissible, for an officer to use deadly force when he has probable cause to believe that his own life is in peril.” Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015)
“[W]e have consistently upheld an officer’s use of deadly force in cases where the officer reasonably believed his life was endangered by a suspect who used or threatened to use his car as a weapon.” Id. at 1181-82.[v]
The court of appeals then set out to determine if Officer Brown violated the Fourth Amendment when he used deadly force. The court stated it would evaluate the first round of eleven shots at the vehicle was in reverse, and then, separately evaluate the second round of ten shots which occurred after the vehicle stopped moving, but was facing the officer, engine running and headlights on.
Issue One: Did the first round of eleven shots fired at the vehicle violate the Fourth Amendment?
The court of appeals held that the officer did not violate the Fourth Amendment when he fired the first round of eleven shots. The court explained
Officer Brown reasonably perceived that his life was in danger when the Pontiac shifted into reverse. Redwine had led the police on a high-speed chase through commercial and residential areas and across state lines before he crashed. Only a few seconds had elapsed between when Officer Brown got out of his vehicle and when the Pontiac started backing up. A reasonable officer in hot pursuit could perceive that the chase was not yet over and that Redwine would continue to drive recklessly to evade arrest. See Pace, 283 F.3d at 1282. Officer Brown was on foot next to his vehicle, where he was exposed to danger. The Pontiac could have struck him as it drove past him. Indeed, the plaintiffs’ expert witness estimated that the Pontiac passed within two feet of Officer Brown. In close proximity to a moving vehicle, with only seconds to react, Officer Brown had reason to believe that his life was in danger. See Singletary, 804 F.3d at 1182; Robinson, 415 F.3d at 1256. So he could reasonably use deadly force to defend himself.[vi]
The plaintiffs argued that the officer was standing in the “V” between his police vehicle’s door and his police vehicle. The court of appeals noted that, assuming this was true, it was still reasonable for the officer to believe the suspect’s vehicle posed him a serious danger. The court stated
When an officer is on foot and standing in close proximity to a suspect’s moving vehicle, he need not be directly in the vehicle’s path to fear reasonably for his life. It is “obvious,” in this circumstance, that the suspect could quickly turn his steering wheel and swerve toward the officer. Long v. Slaton, 508 F.3d 576, 581 n.7 (11th Cir. 2007). Inside a “V” between the open door of his police vehicle and a car moving in his direction does not guarantee an officer’s safety. Being crushed between a car door and the car is little better, if at all, than being run over.[vii]
The dissent in this case argued that, based on the laws of physics, it would have not been possible for the plaintiff’s vehicle to strike the officer. However, court noted that the correct standard to apply is whether a reasonable officer in the position of Officer Brown could have believed his life was in danger. To this they held that it was reasonable for the officer to believe his life was in danger.
Therefore, the first round of eleven shots, fired as the vehicle was in reverse, was reasonable under the Fourth Amendment.
Issue Two: Did the second round of ten shots fired at the vehicle violate the Fourth Amendment?
The second round of shots began approximately six seconds after the first round of shots ended, after the officer reloaded his weapon. The court of appeals, reversing the decision of the district court, held that this second round of shots did not violate the Fourth Amendment.
The court of appeals explained
Officer Brown reasonably continued to use deadly force when he fired the second round of shots six seconds later. “A police officer is entitled to continue his use of force until a suspect thought to be armed is fully secured.” Jean-Baptiste, 627 F.3d at 821 (internal quotation marks omitted). He is “not required to interrupt a volley of bullets until he kn[ows] that [the suspect] ha[s] been disarmed.” Id. at 822; see also Plumhoff, 572 U.S. at 777 (“[I]f lethal force is justified, officers are taught to keep shooting until the threat is over.” (internal quotation marks omitted)). Nor is he required to wait for a car that has just stopped to begin moving again in his direction. See Pace, 283 F.3d at 1278, 1282 (holding that an officer did not violate the Fourth Amendment when he started firing at a car that had been “stopped for, at most, a very few seconds”). A reasonable officer who had nearly been struck by a suspect’s moving vehicle could perceive that the vehicle, with its engine still running and its headlights still shining as it faced him, remained a dangerous weapon that continued to pose a threat until the driver was fully secured.[viii]
The court addressed the reasoning of the district court’s holding to the contrary, particularly that the vehicle was not moving and not an immediate threat to the officer. The court of appeals disagreed with that reasoning and explained
Even if we accept that the threat posed” to Officer Brown “was not immediate in that the [Pontiac] was not moving toward [him]” when the second round of shots was fired, “the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.” Long, 508 F.3d at 581. Again, an objectively reasonable officer would have known the “obvious” fact that the driver of the Pontiac “could have quickly shifted gears and accelerated towards [him] at any time.” Id. at 581 n.7. Officer Brown, having just engaged in a high-speed chase in the middle of the night, found himself staring into the headlights of a vehicle that had seconds ago backed up without warning and passed within only a few feet of him. Because the headlights were shining in his eyes, he could not see whether the driver was disabled or was about to shift into forward, step on the gas, and run over him. A reasonable officer in his shoes could have concluded, in the few seconds that he had to decide, that his life was still in danger. So Officer Brown was entitled to continue using deadly force.[ix]
The dissent argued that the second round of shots should not be reasonable because the officer placed himself in a dangerous position by advancing toward the plaintiff’s vehicle. This is a common argument by plaintiffs: the officer placed himself in jeopardy. The court of appeals was not persuaded and stated
Respectfully, what was Officer Brown supposed to do instead? As a police officer, he had a duty to protect his community, even at the risk of his own life. And that duty required him to arrest the driver of the Pontiac who had led officers on a high-speed chase. The dissent is wrong to imply that Officer Brown “manufacture[d]” the danger to which he was exposed. Id. at 41 n.7 (internal quotation marks omitted). Courage in the line of duty should be commended, not condemned. It certainly should not subject an officer to liability for damages.[x]
The dissent also argued that the reckless driving of the plaintiff as he fled did not justify the use of deadly force to prevent him from again taking flight. The court of appeals stated that the officer did not use deadly force to prevent a second vehicle pursuit. Rather, the officer used deadly force because “he reasonably perceived that his own life was in danger when the [vehicle] started backing up in his direction.”[xi]
In conclusion, the court of appeals held that the officer acted reasonably in firing both the first and second rounds of shots and did not violate the Fourth Amendment. As such he is entitled to qualified immunity from suit. Further, for the same reasons, he is entitled to immunity on all state law claims, and the chief and the city are entitled to summary judgment for all claims against them, as well.
[i] No. 19-15098 (11th Cir. Decided September 7, 2021)
[ii] Id. at 3-7
[iii] Id. at 8
[iv] Id. at 14 (emphasis added)
[v] Id. at 14-15 (emphasis added)
[vi] Id. at 16-17
[vii] Id. at 17 (emphasis added)
[viii] Id. at 21-21 (emphasis added)
[ix] Id. at 22-23 (emphasis added)
[x] Id. at 23-24 (emphasis added)
[xi] Id. at 24