On February 21, 2022, the Fifth Circuit Court of Appeals decided Wilson v. City of Bastrop[i], which serves as an excellent review of the law related to excessive force under the Fourth Amendment.  The relevant facts of Craig are as follows:

In the afternoon of March 19, 2019, the Bastrop Police Department (“BPD”) received two reports of an armed confrontation at the Eden Apartments. The first report warned “they are drawing guns.” The second identified one perpetrator as “Thomas Johnson,” who was driving a red truck with rims. Officer Joshua Green responded to the reports.

Approaching the apartments, Green encountered a stationary red truck with flashing hazards near the H.V. Adams Elementary School, which had been closed for a few months. The truck matched the reported description, so Green initiated a stop. The truck began to pull away, so Green instructed the driver to stop, which he did. From his squad car, Green reported the license plate. Green then instructed the driver to turn off the engine, which he did. When Green exited his car, Thomas Johnson III (“Johnson”) stepped out of the truck’s passenger side holding a semiautomatic pistol with an extended magazine. (His brother—named Thomas Johnson, Jr.—was driving the car). Green ordered Johnson to shut the door, but Johnson ignored him and ran toward the school, sparking an armed chase that would span approximately two minutes.

As vehicles passed nearby, Green drew his weapon and yelled, “Drop the gun!” When Johnson failed to comply and continued to run, Green fired at him. Green chased Johnson into the adjacent open field away from the road and reported “shots fired!” over his radio. Green recalled seeing Johnson looking over his shoulder at him and the barrel of the gun pointing back in his direction. He continued to chase Johnson across the field, ordering him to drop the gun and instructing onlookers to lie on the ground.

Officer John McKinney responded to Green’s radio call, heard the distant gunshots, and proceeded to the opposite side of the field. When he arrived, he saw Johnson approaching his squad car, outrunning Green. Johnson saw McKinney and changed direction toward the tree line bordering the Eden neighborhood. McKinney ordered Johnson to stop and drop the gun. When he did not, McKinney fired from his squad car at Johnson, who stumbled, looked at McKinney, picked up his gun, and continued to flee. McKinney stepped out of his squad car and fired three more shots. Both officers gave chase and repeatedly ordered Johnson to stop and drop the gun as he approached the tree line. When in range, both officer’s shot, and Johnson fell and dropped his gun. Johnson died on the scene from the gunshot wounds.[ii]

Wilson (the Plaintiff) filed suit on behalf of Johnson’s estate and alleged that Officer Green and Officer McKinney used excessive force under the Fourth Amendment when they shot and killed Johnson.  The Plaintiff also sued the city for failure to train, supervise and discipline its employees.  The district court granted summary judgment in favor of the city and granted qualified immunity for the officers.  The Plaintiff appealed the grant of qualified immunity for Officer Green and Officer McKinney to the Fifth Circuit Court of Appeals.

The court of appeals first noted the two-prong test the plaintiff must satisfy to defeat qualified immunity.  The court stated that, in order to defeat an officers motion for qualified immunity, a plaintiff must show (1) that the officer violated the plaintiff’s constitutional rights and (2) that the law was clearly established such that any reasonable officer in the same situation would have know that he was violating the constitution.

Thus, the court first set out to examine whether the officers violated the Fourth Amendment by using excessive force when they shot and killed Johnson.

The court examined the legal principles that are relevant to this issue and stated

When an officer uses deadly force, its reasonableness turns primarily on whether “the officer ha[d] probable cause to believe that the suspect pose[d] a threat of serious physical harm, either to the officer or to others.” Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 488, 493 (5th Cir. 2001) (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)); see also Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). Given the difficulty of “split-second judgments,” the court judges the reasonableness of an officer’s use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Graham, 490 U.S. at 397 (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)), and avoids “second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation,” Valderas v. City of Lubbock, 937 F.3d 384, 389, 774 Fed. Appx. 173 (5th Cir.) (per curiam) (quoting Ryburn v. Huff, 565 U.S. 469, 477, 132 S. Ct. 987, 181 L. Ed. 2d 966 (2012)), cert. denied, 140 S. Ct. 454 (2019).[iii]

The court of appeals then examined whether Officer Green acted reasonably under the Fourth Amendment in his use of deadly force against Johnson.

The court held that Officer Green could “have reasonably believed Johnson posed a serious physical threat to bystanders and to Green himself.”[iv]  The court noted the following facts that led to this conclusion.  First, Officer Green had reason to believe that Johnson was brandishing a firearm at an apartment complex.  Second, Officer Green was the first officer on scene responding to the call and located a vehicle matching the description of the suspect’s vehicle.  Third, Johnson stopped near a school, and while the school was not open, it was a school day and a bus was seen driving past.  Fourth, Green believed he saw a weapon in the back window and when Johnson exited his vehicle, he was holding pistol with an extended magazine.  Fifth, Johnson ran toward the school and refused Officer Green’s commands to drop the gun.  It was at this point that Green first fired on Johnson.  Sixth, Johnson continued to flee with the gun, while he ignored numerous commands to drop the gun.  Seventh, Johnson continued to run, ran toward another officer (McKinney), and then disappeared from view.  Eighth, Officer Green heard gunshots and then observed Johnson emerge from brush, trip, and then drop and retrieve his gun.  Ninth, after retrieving his gun, Johnson ran toward a neighborhood where Officer Green saw bystanders.  At this point Officer Green fired again and Johnson was shot and killed.

Based upon the above facts, the court of appeals held that Officer Green could have reasonably believed that Johnson posed a serious physical threat to the officers and bystanders.  Thus, Officer Green did not violate the Fourth Amendment when he used deadly force.

The Plaintiff raised several arguments on appeal to support their contention that Green did violation the Fourth Amendment, but the court of appeals was not persuaded.  The Plaintiff argued that Tennessee v. Garner required a finding that Green violated the Fourth Amendment.  The court observed that Garner was an obviously unarmed, fleeing felon.  Here, Johnson was known to be armed, and, as such, he posed a threat to officers and bystanders in the area.

The Plaintiff argued that when the vehicle stopped, any threat to people at the apartment ended and deadly force was not justified.  However, the court stated that when Johnson fled, armed and failing to comply with commands to drop his gun, in the presence of bystanders, the use of deadly force became justified.

Additionally, the Plaintiff argued that because Johnson never fired his weapon, he never posed a threat.  The court of appeals stated

Our precedent rejects that argument: “we have never required officers to wait until a defendant turns towards them, with weapon in hand, before applying deadly force to ensure their safety.” Salazar-Limon v. City of Houston, 826 F.3d 272, 279 n.6 (5th Cir. 2016) (collecting cases). By the same token, officers need not wait until a fleeing suspect turns his weapon toward bystanders before using deadly force to protect them. See Boyd v. Baeppler, 215 F.3d 594, 601 (6th Cir. 2000) (deadly force justified when suspect fled with a pistol and disregarded police warnings to stop); Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997) (deadly force justified when suspect fled with a sawed-off shotgun and disregarded officer’s command to stop).[v]

Lastly, the Plaintiff argued that Louisiana law allows for open carry of firearms.  However, the court stated that the law “does not permit armed suspects to flee from officers and disobey lawful commands to relinquish their guns.”[vi]  Additionally, here Johnson’s failure to obey created a threat of serious bodily harm to officers and bystanders.

The court next examined whether Officer McKinney acted reasonably under the Fourth Amendment in his use of deadly force against Johnson.

The court of appeals held that Office McKinney “could have reasonably believed that Johnson threatened him and others with serious physical harm.”[vii]  The court noted the following facts that led to this conclusion.  First, Officer McKinney heard distant shots and a “shots fired” call over the radio, causing him to be unsure whether Officer Green or the suspect fired.  Second, Johnson was running toward him holding a gun and then changed directions toward a tree line that bordered a subdivision.  Third, Johnson repeatedly ignored Officer McKinney’s commands to drop the gun.  Fourth, even after Officer McKinney shot at Johnson, he kept his gun and continued his flight.  At this point Officer McKinney, along with Officer Green, fired on Johnson, and he was shot and killed.

The Plaintiff argued that Officer McKinney mistakenly believed that the “shots fired” were shots from Johnson, even though Johnson never fired his gun.  The court of appeals stated that even though Officer McKinney was mistaken in that belief, it was still a reasonable belief and qualified immunity still applies when an officer’s mistaken belief was reasonable.

For the reasons above, the court of appeals held that Officer McKinney could have reasonably believed that Johnson posed a threat of serious physical harm to him and others.

The Fifth Circuit then held

In sum, both Green and McKinney reasonably believed that Johnson—(1) suspected of an armed confrontation, (2) fleeing as police attempted to detain him, (3) running towards one of the officers in the presence of bystanders, (4) armed with a semiautomatic pistol, and (5) refusing to obey audible police commands to drop his weapon—posed a threat of serious physical harm to themselves and bystanders. We therefore agree with the district court that the lethal force each officer deployed was not constitutionally excessive.



[i] No. 21-30204 (5th Cir. Decided February 21, 2022)

[ii] Id. at 2-4

[iii] Id. at 6 (emphasis added)

[iv] Id.

[v] Id. at 10 (emphasis added)

[vi] Id.

[vii] Id. at 11

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