On May 25, 2022, the Eleventh Circuit Court of Appeals decided Torres v. Howell[i], which serves as an excellent review of the law related to deadly force under the Fourth Amendment. The relevant facts of Torres are as follows:
Plaintiffs-Appellants Alicia and Alfonso Torres resided in Moultrie, Georgia, with their three children, including decedent Peter Torres (Torres). On February 4, 2017, their daughter called 911 to report that her brother Peter was belligerent and began to batter and assault those around him. Deputy Joshua Luke (Deputy Luke) and Deputy Joshua Perry (Deputy Perry) (collectively, the “Deputies”), two uniformed officers of the Colquitt County Sheriff’s Office, were dispatched to the residence.
The 911 dispatcher notified the deputies that a domestic dispute occurred and Torres was “going to be physical with everyone in the house,” he may have a weapon (possibly a knife), and he was possibly under the influence of narcotics. Minutes later, the dispatcher reported that Torres was chasing after the occupants of the residence and that the occupants had left the home. As the Deputies drove to the residence, another deputy reported over the radio that he had responded to the same residence about a week prior regarding a physical domestic dispute. Before the Deputies arrived at the residence, the dispatcher advised that Torres was no longer chasing the family members, did not have any weapons, and had “trashed the house.”
Deputies Luke and Perry arrived at the Torres residence in separate marked patrol vehicles. At that point, everyone except Torres had fled the home. Deputy Luke then walked to the rear of the house, while Deputy Perry walked to the front door. Deputy Luke was equipped with a body camera, which recorded the events that followed.
Upon entering the backyard, Deputy Luke saw Torres sitting in a chair with his head slumped down. Deputy Luke spoke to Torres, saying “Boss man, do not move.” Getting no reaction, Deputy Luke repeated this instruction, twice exclaiming, “Don’t move.” Instead of complying, Torres raised his head, leaned forward, grabbed a metal tray, and threw it at Deputy Luke. In response, Deputy Luke drew his handgun and twice stated to Torres “Let me see your hands.” Torres was approximately 20 feet away at the time and did not comply with Deputy Luke’s instructions.
Torres then stood up, and Deputy Luke instructed Torres to “quit moving.” Torres picked up a small propane tank that was on the ground and began to run towards Deputy Luke. Deputy Luke sidestepped away from Torres and began running towards his patrol car, intending to use it as a barrier between himself and Torres. The video shows that sixteen seconds elapsed between the time Deputy Luke first made visual contact with Torres and the time that Torres began charging Deputy Luke.
As he was retreating, Deputy Luke attempted to contact Deputy Perry via radio, and he looked in Torres’s direction. Deputy Luke saw that Torres was still running towards him. Torres was running with his hands by his side, so Deputy Luke could not determine whether Torres had a weapon in either one of his hands. The video shows though, by that time, Torres had dropped the propane tank. Deputy Luke instructed Torres to “quit,” but Torres did not slow his speed, change direction, or give any indication that he intended to stop pursuing Deputy Luke. When Torres got within two to three feet of him, Deputy Luke turned and fired his handgun once, striking Torres in the chest. The shot proved to be fatal. The video establishes that three seconds elapsed between the time Deputy Luke began retreating to his patrol vehicle and the time he fired his handgun.[ii]
The Torres’s filed suit on behalf of their deceased son, Peter (Torres), and alleged that Deputy Luke used excessive force under the Fourth Amendment when he shot Torres, who at the time, was unarmed. The deputy filed a motion for qualified immunity and the district court granted the motion, holding that the deputy acted reasonably under the Fourth Amendment when he shot Torres. The plaintiff’s then appealed the grant of qualified immunity for the deputy to the Eleventh Circuit Court of Appeals.
The issue before the court on appeal was whether the district court erred in granting qualified immunity for the deputy.
The court then noted that, when an officer or deputy is engaged in a discretionary function, such as the decision of whether to use force and/or deadly force, the plaintiff bears the burden to overcome the deputy’s motion for qualified immunity. In order to overcome the deputy’s qualified immunity defense in this case, the plaintiff must show that (1) the deputy violated Torres’s rights under the Fourth Amendment by using excessive force, and (2) the right was clearly established such that every reasonable officer in that situation would have known they were violating the constitution. Regarding what it means for the law to be “clearly established,” the court explained that
[A]t the time of the officer’s supposedly wrongful act the law “was already established to such a high degree that every objectively reasonable” officer in his place “would be on notice” that what he was doing was “clearly unlawful given the circumstances.” Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002).[iii]
The court also examined the legal principles relevant to reasonable and excessive force under the Fourth Amendment. The court stated
As in other areas of our Fourth Amendment jurisprudence, “[d]etermining whether the force used to effect a particular seizure is ‘reasonable'” requires balancing of the individual’s Fourth Amendment interests against the relevant government interests. Id., at 396, 109 S. Ct. 1865. The operative question in excessive force cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” [Tenn. v.] Garner, [471 U.S. 1,] 8-9, 105 S. Ct. 1694, 85 L. Ed. 2d 1.
The reasonableness of the use of force is evaluated under an “objective” inquiry that pays “careful attention to the facts and circumstances of each particular case.” Graham, supra, at 396, 109 S. Ct. 1865. And “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ibid. “Excessive force claims . . . are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.” Saucier v. Katz, 533 U.S. 194, 207, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). That inquiry is dispositive: When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.[iv]
The court of appeals then set out to examine the first prong of the qualified immunity analysis, particularly whether the deputy violated the Fourth Amendment when he shot Torres.
The court then examined the facts relevant to this issue. First, the court noted that the police received a 911 call that Torres had committed “assault and battery against the occupants of his residence.”[v] Second, the deputies were advised that Torres was “terrorizing” people in the house and was “physical with everyone.”[vi] Third, the deputies were advised by dispatch that Torres may have a knife and were then told that Torres was unarmed. However, there was no way for the deputies to know whether Torres had rearmed himself after his family fled the residence. Fourth, during the nineteen second, “rapidly evolving” encounter with Torres, Torres threw a metal tray at Deputy Luke ignoring his command to not move, ignored numerous commands to show his hands and stop moving, and charged at Deputy Luke despite the fact that the deputy had pointed his firearm at him. Lastly, while Deputy Luke attempted to retreat to cover at his patrol vehicle, Torres continued to pursue him and was within arm’s reach of the deputy and his drawn weapon. The court further stated
Even if Deputy Luke had known for sure Torres did not have a knife or any other weapon, it is undisputed that Torres ignored repeated commands, charged Deputy Luke, and got close enough that he would have been able to obtain the deputy’s firearm and use it against the Deputies. Torres’s possible intoxication and Deputy Luke’s larger physical stature do not diminish the severity of Torres’s threatening conduct or the reasonableness of the Deputy’s response. Considering the unpredictability of Torres’s behavior and his aggressive movement towards Deputy Luke, “[w]e think that [Deputy Luke] need not have taken that chance and hoped for the best.” Long v. Slaton, 508 F.3d 576, 583 (11th Cir. 2007). Torres’s conduct established the danger of imminent bodily injury if he had reached Deputy Luke. [vii]
Thus, the court held, in consideration of the totality of the circumstances, Deputy Luke did not violate the Fourth Amendment when he shot Torres as the deputy acted reasonably.
The court also set out to examine the second prong of the qualified immunity analysis, particularly whether the law was clearly established, for the sake of argument, as if the shooting had been a constitutional violation. The court explained that
A right is clearly established when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015)[viii]
After an examination of case law from the Supreme Court and Eleventh Circuit the court held that, even if it was decided that the deputy violated the Fourth Amendment when he shot Torres, the law was not clearly established that it was a constitutional violation. In fact, the court noted a Sixth Circuit case that held that
[A]n officer “need not wait until there is a physical struggle for control of his weapon before a situation presents an imminent danger of serious physical injury. DeLuna v. City of Rockford, 447 F.3d 1008, 1013 (7th Cir. 2006)[ix]
Thus, the court of appeals affirmed the grant of qualified immunity for Deputy Luke because his use of deadly force was reasonable under the Fourth Amendment.
[i] No. 20-14646 (11th Cir. Decided May 25, 2022 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 7
[iv] Id. at 6-7
[v] Id. at 8
[vii] Id. at 9-10 (emphasis added)
[viii] Id. at 10-11 (emphasis added)
[ix] Id. at 12 (emphasis added)