In 2021, the Sixth Circuit Court of Appeals decided Tucker v. Marquette Cty.[i], in which the court of appeals was faced with the issue of whether a deputy violated the Fourth Amendment when he shot an angry, non-compliant, suicidal man, who was walking toward the officer, holding a shotgun pointed at the ground. The relevant facts of Tucker are as follows:
On the morning of June 9, 2016, Clifford Tucker called his doctor’s office complaining about severe back and shoulder pain and threatening to commit suicide. The office called the Marquette County Sheriff’s department, which dispatched Deputy Keith Romback to Tucker’s house. Romback had seen Tucker the day before after responding to a 911 call from Tucker about his pain medication being stolen. When Romback arrived at Tucker’s house on June 9th, he first spoke to Tucker on the porch, with his bodycam recording video and sound. Romback explained that he was there because Tucker made threats to the hospital. Tucker initially denied making any threats, told Romback to stay away from him, threw down the coffee mug he had been holding, crossed his arms, and said, “you want to come in? You come over top of me.” He then removed his glasses and said, “I don’t give a fuck no more, all right? You get the hell off my property.” Romback told him to be careful, to which Tucker replied, “be careful, your ass.” Romback then called for backup, before Tucker continued, “get the hell off my property now. If I want to hurt myself, there’s not a fucking thing you can do about it.”
After several more demands for Romback to leave, Tucker moved from the doorway to sit on his couch next to a gun cabinet. Romback followed him inside but remained near the doorway. He told Tucker, “Cliff, I’m just here to help you. I’m not here to bust your balls. I’m not here to do anything.” Tucker again told Romback to go away. So Romback said, “I’ll go away if you answer one thing . . . was that you that called the hospital?” Tucker then admitted to calling the hospital, and Romback said, “and that’s why I’m here, Cliff.” To that Tucker replied, “I don’t care why you’re here.” Romback then asked, “well, what did you think would happen when you called the hospital?” Tucker responded, “I don’t give a fuck. When I get ready to blow my fucking head off, there’s nothing you can do about it.” Romback replied, “I know that, Cliff,” and Tucker again told him to “get out.” Then Romback checked on the status of his backup, requesting that it be expedited.
After hearing Romback’s request to expedite his backup, Tucker got up from the couch and walked a few feet to his bedroom. Romback stepped further into the house to follow Tucker, but before Romback entered the bedroom, Tucker emerged in the doorway holding a shotgun with both hands. He swung the gun to his right so that it briefly pointed at Romback before pointing it at the floor. Romback drew and aimed his gun at Tucker, repeatedly ordering, “Clifford, don’t! Clifford, don’t!” Tucker held the gun with his right hand by its butt, with the barrel facing the floor. He told Romback, “I’m asking you to leave.” Romback yelled, “put it down, Clifford! Clifford! Clifford, don’t!” Tucker yelled in reply, “shoot me then! Shoot me! Shoot me!” Romback kept ordering Tucker, “Clifford, don’t.” But Tucker continued to yell, “shoot me,” waved his left arm, and moved forward slowly toward Romback. As he was moving forward, Romback fired four shots, hitting Tucker in the chest. Tucker collapsed. He died from his wounds later that day.[ii]
Tucker’s estate sued Deputy Romback for violating his rights under the Fourth Amendment by using excessive force and sued the county for failing to properly train Deputy Romback. The district court granted summary judgment to the deputy and the county, holding that the deputy did not violate the Fourth Amendment by using deadly force. Tucker’s estate appealed to the Sixth Circuit Court of Appeals.
On appeal, the court of appeals first examined the legal principles relevant to whether the deputy used excessive force under the Fourth Amendment when he shot Tucker. The court stated
Whether an officer used excessive force turns on what is objectively reasonable based on all the circumstances. Hicks v. Scott, 958 F.3d 421, 435 (6th Cir. 2020). Deadly force is only reasonable when there is probable cause that a suspect poses an immediate threat to the officer or to others. Id. In determining if such a threat existed, we afford “a built-in measure of deference to [an] officer’s on-the-spot judgment.” Id. (alteration in original) (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)). Possession of a gun alone does not create that threat. Jacobs v. Alam, 915 F.3d 1028, 1040 (6th Cir. 2019); see also Thomas v. City of Columbus, 854 F.3d 361, 366 (6th Cir. 2017) (“[W]e do not hold that an officer may shoot a suspect merely because he has a gun in his hand.”). Depending on the circumstances, however, that threat making deadly force reasonable may still exist when a suspect does not aim his gun at an officer. Jacobs, 915 F.3d at 1040.[iii]
The court also discussed Sixth Circuit precedent relevant to Tucker’s case. First, the court discussed Thomas v. City of Columbus.[iv] In Thomas, an officer responding to a burglary in progress, shot and killed the suspect, who was running toward him holding a handgun. The court held that the officer did not violate the Fourth Amendment, reasoning that
[T]he suspect, who was initially about forty feet from the officer and closing fast, could “raise and fire a gun with little or no time for an officer to react,” so an officer could reasonably perceive a threat to his life.[v]
Second, the court examined Livermore ex rel Rohm v. Lubelan[vi], in which the police shot a suspect that they were attempting to arrest, who had previously exhibited violent behavior, was armed with a rifle in close proximity to officers, and refused to put down the rifle and submit to arrest. The court held
[I]t was reasonable for an officer to shoot a suspect who held a rifle even if the suspect did not aim the gun at another officer.[vii]
Lastly, the court examined Thornton v. City of Columbus,[viii] in which the court held
[T]hat a sufficient threat existed from a suspect who held, but did not aim, a shotgun while looking at and walking toward officers, ignoring their commands to drop the gun. We reasoned that the “deadly threat” the suspect posed “could have easily and quickly transformed into deadly action in a split-second” and that the officers did not have to wait for him to raise his gun before using deadly force.[ix]
The court of appeals then examined the facts of Tucker’s case in light of the legal principles and precedent discussed. The court noted that Tucker was potentially suicidal and angry. He threw his coffee mug on the ground, said the deputy would have to “come over the top of” him and there was nothing the deputy could do if he wanted to hurt himself. After the deputy called for his back-up to expedite, indicating that the deputy was not going to leave, Tucker went into a room and picked up a shotgun. As he swung it around, it briefly pointed in the deputy’s direction before he pointed it to the floor. The deputy repeatedly told Tucker to “don’t” and “put it down” but Tucker ignored the commands. Tucker walked slowly toward to the deputy, holding the shotgun by the stock with one hand, barrel pointed toward the floor, and waived his free hand “wildly.”
Based on the above facts, the court stated
[Deputy] Romback faced an agitated, potentially suicidal man who was closing the already short distance between them, ignoring commands, and holding a shotgun, all the while yelling for Romback to shoot him. Based on the totality of those circumstances, and consistent with our caselaw, it was reasonable for Romback to use deadly force. He had probable cause to believe that he faced an immediate threat to his safety, especially considering the deference owed to his on-the-spot judgment. See Hicks, 958 F.3d at 435. Like the officers in Thomas, Livermore, and Thornton, Romback did not have to wait for Tucker to aim his gun.[x]
Tucker’s estate argued that he did not have his finger on or near the trigger and since the deputy had his gun aimed at him (Tucker), the deputy could have reacted faster than Tucker could have shot him. The court of appeals was not persuaded and stated
Neither of those arguments, both made with the benefit of hindsight, renders Romback’s actions unreasonable. The extra time that it would have taken for Tucker to move his hand to the trigger before taking aim does not mean that he could not “have easily and quickly transformed” his deadly threat into deadly action. Thornton, 727 F. App’x at 837. And Romback was not required to bet on having a quicker trigger finger than Tucker just because he already had his gun aimed. See id. at 838. The Fourth Amendment does not require an officer to make that gamble.[xi]
Tucker also argued that, because the gun was not pointed at the deputy, the case must go to a jury to decide if he posed a deadly threat. The court of appeals disagreed because the case that Tucker cited in support of this argument did not, based on the totality of the circumstance, indicate that the person the officers shot posed a threat. Specifically, in King v. Taylor,[xii] King allegedly made threats hours earlier. Officer arrived to check and saw him asleep through a window of house. They announced their presence, which woke him up, and they shot him through the window when they said he pointed a gun at them. Forensic evidence placed the claim that he pointed a gun at the officers in dispute. Thus, the court stated that the totality of the circumstances did not support that King posed a threat to the officers. The court of appeals noted that the facts of Tucker’s case supported that Tucker posed a threat to the deputy. Specifically, the court stated
[J]ust as in Thomas, Livermore, and Thornton, the totality of the circumstances present here—including the close surroundings, Tucker’s steps toward Romback, him ignoring Romback’s commands, his angry or threatening statements and unpredictable gesticulation, and his potential ability to aim the gun quickly, among others—made the threat such that the use of deadly force was reasonable.[xiii]
The court of appeals also held that since there was no underlying constitutional violation, Marquette County was also not liable.
As such, the court of appeals affirmed the grant of summary judgment for the deputy and the county.
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.
_________________________________________________
Citations
[i] 2021 U.S. App. LEXIS 20366 (6th Cir. July 7, 2021 Unpublished)
[ii] Id. at 1-4
[iii] Id. at 6 (emphasis added)
[iv] 854 F.3d 361 (6th Cir. 2017)
[v] Id. at 366
[vi] 476 F.3d 397, 405 (6th Cir. 2007)
[vii] Id.
[viii] 727 F. App’x 829, 831, 837 (6th Cir. 2018)
[ix] Id.
[x] Id. at 9 (emphasis added)
[xi] Id. at 9-10 (emphasis added)
[xii] 694 F.3d 650 662-63 (6th Cir. 2007)
[xiii] Id. at 11 (emphasis added)
