In 2018, the Eleventh Circuit Court of Appeals decided Shaw v. City of Selma[i], in the court of appeals examined whether an officer violated the Fourth Amendment when he shot man who had created a disturbance in a restaurant and then began walking toward the officer holding a hatchet, refusing to comply with repeated commands to drop it.  The relevant facts of Shaw are as follows:

In the middle of the afternoon in early December 2013, Selma Police received an emergency call about a disturbance at a Church’s Chicken restaurant. Shaw, a 74-year-old mentally ill man, had attempted to enter the restaurant but was turned away by its general manager. Officers Daniel Boone, Ronald Jones, and Desmond Williams responded to a dispatch about the incident.

 The dispatch directed the officers to the Church’s Chicken with the call “disorderly conduct in progress.” The dispatcher relayed the suspect’s description to the officers and informed them that Shaw had been at the restaurant the Sunday before “armed with a knife.”

Jones was already in the area near the Church’s Chicken. After he spotted Shaw, who matched the dispatched description of the disorderly suspect, Jones radioed for the other officers to join him. The three of them found Shaw inside an abandoned laundromat down the street. Most of the events of the next two minutes were recorded by Williams’ body camera.

Boone, who was familiar with Shaw, went inside the building “to talk” with him and coax him out. Williams walked up to the building at roughly the same time. As he approached, Jones (who also knew Shaw) warned Williams that Shaw would “fight you in a minute.”

Once inside, Boone asked Shaw to go outside the laundromat and speak with him, but Shaw refused. Shaw then bent down and picked up a hatchet. Boone drew his gun in response and started backing out of the building. Shaw, holding the hatchet, followed him.

As Boone exited the laundromat, the officers firmly and clearly told Shaw several times to “put the axe down.” Once Shaw was outside, Williams drew his gun, and Jones pulled out his baton. Shaw began slowly walking away from the building in the direction of the restaurant. The officers followed him down the street with their weapons drawn. Between Shaw’s curses at them, they repeatedly instructed him to put down the hatchet. Shaw ignored them and continued walking away, hatchet still in hand.

The four continued making their way down the street, walking past some houses. Shaw slowed down and moved onto the front lawn of one of those houses, stopping beside a parked car. Williams, following closely, raised his pistol and ordered Shaw to put down the hatchet twice more. Shaw stopped walking, turned, and began moving slowly towards Williams. As he approached, Shaw shouted for Williams to “Shoot it! Shoot it!” As he did so, Shaw’s right arm and the hatchet were outside the frame of the video.

By the time he was less than five feet away from Williams, Shaw, while holding the hatchet, yelled “Shoot it!” one more time. Williams immediately fired a single shot at Shaw’s chest, and Shaw fell. The video shows that when the shot was fired Shaw was close to Williams and moving closer. A short time afterwards, the paramedics pronounced Shaw dead at the scene.

In the two minutes or so between Williams’ arrival at the laundromat and the shooting, the officers told Shaw to “put the axe down” at least 26 times.[ii]

Shaw’s estate subsequently sued Officer Williams, the police chief and the City of Selma for violating his right to be free from excessive force and false arrest under the Fourth Amendment and various claims under Alabama law.  [Note:  The state claims are not discussed in this article, but the officers did receive immunity under state law for those claims.]

The defendants filed motions for qualified immunity and summary judgment and the motions were granted.  Shaw’s estate appealed to the Eleventh Circuit Court of Appeals.

Qualified Immunity

The court of appeals first discussed qualified immunity and what a plaintiff must show to overcome an officer’s motion for qualified immunity.  The court stated

To overcome the qualified immunity defense, the estate must satisfy a two-step inquiry. It must first prove that the facts alleged, construed in the light most favorable to it, establish that a constitutional violation did occur. Smith, 834 F.3d at 1291. And it must also show that law existing at the time the conduct occurred clearly established that the conduct violated the constitution. Pearson v. Callahan, 555 U.S. 223, 232-36, 129 S. Ct. 808, 816-18, 172 L. Ed. 2d 565 (2009).[iii]

Thus, the plaintiff must show (1) a constitutional violation and (2) that the law was clearly established such that a reasonable officer would have been on notice that his conduct violated the constitution.

The Use of Deadly Force

The court of appeals then set out to determine if the officer violated the Fourth Amendment in his use of deadly force against Shaw.  The court discussed the legal principles relevant to this issue and stated

We analyze a claim of excessive force under the Fourth Amendment’s objective reasonableness standard.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009) (quotation marks omitted). That means we determine whether the seizure was “objectively reasonable . . . from the perspective of a reasonable officer on the scene.” Smith, 834 F.3d at 1294 (quotation marks omitted). The amount of force used to affect the seizure must be reasonably proportionate to the need for that force. Lee, 284 F.3d at 1198. We balance several factors on that scale. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989). The decisive one here is the threat of physical harm that Shaw posed at the time he was shot. The issue is whether an officer in Williams’ position reasonably could have believed that Shaw posed a serious threat when he was close to and advancing on Williams, had a hatchet in his hand, and had ignored more than two dozen orders to drop the weapon. See Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (“In this case, the reasonableness analysis turns on the second of these factors: presence of an imminent threat.”).[iv]

The court also mentioned the other two factors from Graham v. Connor, particularly (1) the seriousness of the crime committed, and (2) whether the suspect was actively resisting or attempting to evade arrest by flight. The court stated that those two factors are not present in this case but nor are they required.[v]  In this type of situation, if the officer has probable cause to believe the suspect poses a threat of serious physical harm, either to the officer or others, this is sufficient for a reasonableness analysis under Graham.[vi]

Shaw’s estate argued that summary judgment for the officer was not appropriate because there is a question of whether Shaw raised the hatchet at the officer at the time the officer shot him.  The estate contends that if Shaw did not raise the hatchet, no reasonable officer could have feared serious injury or death.  To this assertion, the Eleventh Circuit stated

But the legal premise — that no reasonable officer could have feared serious injury or death unless the hatchet-holding hand was raised up at the time — is wrong.[vii]

The court of appeals then examined the relevant facts that make up the “totality of the circumstances.”  The court noted the facts relevant to whether a reasonable officer could believe Shaw, who was mentally ill, posed a threat of serious physical harm were as follows: (1) another officer warned Officer Williams that “Shaw will fight him in a minute;” (2) a few days before this incident, Shaw was threatening a customer a Churches Chicken with a knife, (3) Shaw was armed with a hatchet and non-compliant as he defied 26 commands to drop the hatchet; (4) Shaw was advancing toward Officer Williams with the hatchet in his hand; (5) Shaw was close, within a few feet of Officer Williams when he shot him; and (6) Shaw was yelling at Officer Williams to “shoot it!”

The court of appeals, construing the facts in a light most favorable to the plaintiff as they are required to do, stated that they would assume that Shaw had not raised the hatchet at the time he was shot.  The court also stated

Shaw could have raised the hatchet in another second or two and struck Williams with it. Whether the hatchet was at Shaw’s side, behind his back, or above his head doesn’t change that fact. Given those circumstances, a reasonable officer could have believed that Shaw posed a threat of serious physical injury or death at that moment. A reasonable officer could have also concluded, as Williams apparently did, that the law did not require him to wait until the hatchet was being swung toward him before firing in self-defense.[viii]

The court of appeals also examined existing caselaw to determine if the law clearly established that shooting Shaw would violate the Fourth Amendment.  The court then discussed the precedent and stated

Instead of clearly establishing the law against Williams, binding precedent clearly establishes it in his favor. See Singletary v. Vargas, 804 F.3d 1174, 1183 (11th Cir. 2015) (“[T]he 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.”) (quoting Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007)); Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (“Regardless of whether [the suspect] had drawn his gun, [his] gun was available for ready use, and [the officer] was not required to wait and hope for the best [before using deadly force to stop him].”) (quotation marks omitted); Garczynski v. Bradshaw, 573 F.3d 1158, 1169 (11th Cir. 2009) (“[W]here orders to drop [a] weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.”) (quotation marks omitted); see also Smith, 834 F.3d at 1294-95 (concluding that it was reasonable for officers to believe that a suspect who was carrying a knife and refused to comply with orders to disarm himself posed an immediate threat to the officers’ safety); Blanford v. Sacramento County, 406 F.3d 1110, 1116-19 (9th Cir. 2005) (holding that officers did not use excessive force in shooting a suspect carrying a sword after the suspect, who was behaving erratically, refused to comply with orders to drop the sword, even though he had not actually threatened anyone with the weapon).[ix]

Thus, the law shows that a suspect does not need to raise a weapon at officers, where there is other evidence to substantiate the threat, in order to be considered a threat of serious physical harm.

The court of appeals also emphasized the courts should not view cases with the benefit of “20/20 hindsight.” Specifically, the court stated

In cases involving excessive force claims it is doctrinal gospel that we do not view an officer’s actions with “the 20/20 vision of hindsight,” Jones v. Fransen, 857 F.3d 843, 852 (11th Cir. 2017) (quotation marks omitted), and that we make special allowance for them in “tense, uncertain, and rapidly evolving” situations, Penley, 605 F.3d at 850. Even with the benefit of hindsight and without making any special allowance, we would not find that Williams violated clearly established Fourth Amendment law. The shooting of a mentally ill man was tragic, as such shootings always are, but tragedy does not equate with unreasonableness.[x]

Thus, the court of appeals affirmed the grant of summary judgment for Officer Williams and other defendant regarding the excessive force claim.

The False Arrest Claim

The estate asserts that the district court improperly granted summary judgment for officers in the false arrest claim.  Specifically, the estate alleges that Officer Williams committed false arrest under the Fourth Amendment when he pointed his gun at Shaw when Shaw exited the laundromat.  The court of appeals disagreed with the estate and stated

[W]e have said time and time again that “the fact that police . . . draw their weapons does not, as a matter of course, transform an investigatory stop into an arrest.” United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995). Simply because Williams did so here after he saw Shaw pick up the hatchet did not transform this stop into an arrest either. Id.; see also United States v. Aldridge, 719 F.2d 368, 371 (11th Cir. 1983) (“The use of a gun in connection with a stop is permissible when the officer reasonably believes it is necessary for his protection.“); cf. Courson v. McMillian, 939 F.2d 1479, 1492 (11th Cir. 1991) (“[T]he use of a particular method to restrain a person’s freedom of movement does not necessarily make police action tantamount to an arrest, and . . . police may take reasonable action, based upon the circumstances, to protect themselves . . . .”) (quotation marks and alterations omitted). Without an arrest, there can be no claim for false arrest. See Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010) (defining a § 1983 claim for false arrest as “an arrest without a warrant and lacking probable cause“) (emphasis added).

Since the officer pointed his gun at Shaw in response to the threat Shaw posed with the hatchet, and since Shaw was not “arrested” within the meaning of “arrest” for a false arrest claim, the court of appeals affirmed the grant of summary judgment to this claim.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] 884 F.3d 1093 (11th Cir. 2018)

[ii] Id. at 1096-1098

[iii] Id. at 1099 (emphasis added)

[iv] Id. (emphasis added)

[v] Id. at Fn. 5

[vi] Id.

[vii] Id. at 1099

[viii] Id. at 1100 (emphasis added)

[ix] Id. (emphasis added)

[x] Id. at 1100-1101 (emphasis added)