On January 21, 2025, the Seventh Circuit Court of Appeals decided Ancheta v. Jones[i], in which several police officers converged on drug suspect at a gas station. The first officer to approach, with gun pointed, was in plainclothes and allegedly failed to properly identify himself. The drug suspect was shot, based on his actions, and he filed suit arguing that the first officer’s failure to properly identify himself led to his shooting. Since use of force cases are fact-intensive, the relevant facts of Ancheta, taken directly from the case, are as follows:
October 2018, officers with the Winnebago County, Illinois, Sheriff’s Department prepared to arrest Ancheta, whom they suspected of trafficking drugs. The officers were briefed on Ancheta’s background, including his history of gang affiliation and firearm possession. A surveillance team in an unmarked SUV staked out a home where they believed Ancheta was staying, hoping to arrest him if he emerged. Ancheta eventually left the home and stepped inside a white sedan that whisked him away. The officers tailed the sedan, calling for backup on the way. When the sedan pulled up to the center pump at a gas station, five police cars—including the unmarked SUV—converged at the scene and boxed in the sedan. Officer Jacob Marino, dressed in plain clothes, sprung out of the back seat of the SUV and drew his weapon. Almost simultaneously, a marked police car behind the sedan turned on its emergency flashers.
Ancheta, who had recently been shot multiple times by gang members, believed he was being ambushed. Though Marino testified that he shouted “Police. Police. Hands up,” Ancheta denies that he heard those words, adding that nothing about Marino’s clothes or car identified him as an officer. Within moments of seeing Marino, Ancheta drew his own weapon and fired it in the air (Marino says Ancheta fired at him), and Marino fired back. Other officers on the scene testified that they heard Marino yell, “Gun!” or saw Marino react to Ancheta’s weapon, and so they too fired at Ancheta. Ancheta was hit six times. The shooting is captured on video from two vantage points—the gas station and a dash camera from the marked SUV that pulled up behind the white sedan. (The details, however, are difficult to make out, as Ancheta is barely visible inside the car, and the timing and direction of his fire is unclear.).[ii]
Anchetta survived and subsequently sued the officers. He alleged that the officers violated his right to be free from excessive force under the Fourth Amendment when they shot him. He also alleged the officers acted unreasonably by failing to properly announce their presence “with loudspeakers or marked police cars and uniforms.” The district court granted all defendants’ motions for summary judgment and dismissed the suit. Anchetta appealed the dismissal to the Seventh Circuit Court of Appeals.
Anchetta’s first argument on appeal was that the district court erred in dismissing his claim for excessive force when the police shot him because there is factual dispute over “whether the officers acted unreasonably in creating the conditions that precipitated the encounter – that is, by approaching him with weapons drawn and without sufficiently identifying themselves as officers.” Anchetta also argued that there is a factual dispute over whether the officer yelled, “Police. Police.” The court noted that, on the dash camera video from a patrol car, that announcement could not be heard.
The court of appeals then discussed the legal principles relevant to the issues raised by Anchetta. The court stated
Tactical mistakes that result in an avoidable use of deadly force do not usually amount to a Fourth Amendment violation. Est. of Biegert by Biegert v. Molitor, 968 F.3d 693, 698 (7th Cir. 2020) (citing City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 615, 135 S. Ct. 1765, 191 L. Ed. 2d 856 (2015)). In general, an officer does not act unreasonable simply “because he created a situation where deadly force [becomes] essentially inevitable.” Id. (concluding that the officers’ failure to plan for encountering the suspect, failure to secure a knife block, and aggressive questioning of the suspect did not render their “subsequent use of force unreasonable”). Even if the defendants’ actions exacerbated the possibility of a dangerous confrontation, Ancheta’s action—the use of his gun—was an “intervening cause of the deadly force.” Id. The defendants [officers] “escalated the force that they applied in response to the force with which [Ancheta] resisted; the situation requiring them to use deadly force was not primarily of their own making.” Id.; see also Horton v. Pobjecky, 883 F.3d 941, 953 (7th Cir. 2018) (officer’s response with deadly force—”[u]nder immense pressure, and with limited time”—to an encounter with a suspected armed robbery subject was “reasonable, appropriate and justified … in compliance with the Fourth Amendment“).[iii]
Thus, the court held that even if the officers failed to verbally announce “Police” as they approached, this would not cause their subsequent use of force to violate the Fourth Amendment. Similarly, where tactical mistakes are made, resulting in a possibly avoidable use of deadly force, this also does not violate the Fourth Amendment.
Therefore, the court of appeals affirmed the grant of summary judgement dismissing the case.
Practice Pointers:
As stated above, the court of appeals stated the general rule regarding tactics is as follows: Tactical mistakes that result in an avoidable use of deadly force do not usually amount to a Fourth Amendment violation. Est. of Biegert by Biegert v. Molitor, 968 F.3d 693, 698 (7th Cir. 2020)
In the Est. of Biegert by Biegert v. Molitor, cited by the Seventh Circuit in Ancheta’s case, the court of appeals noted two situations where tactical mistakes have led to findings of excessive force. Specifically, the court of appeals discussed officers’ actions in trying to arrest a person that was fleeing in a vehicle. stated
Only in narrow circumstances have we concluded that an officer acted unreasonably because he created a situation where deadly force became essentially inevitable. In Starks v. Enyart, for example, we held that an officer acted unreasonably when he jumped in front of a speeding cab, after which companion officers shot the driver to prevent the officer from being struck. 5 F.3d 230, 234 (7th Cir. 1993). The officer acted unreasonably, we explained, because he created a situation in which it was impossible for a person to react in a way that would “avoid presenting a deadly threat.” Id.[iv]
It was noted that, in Starks, the suspect who was shot was not fleeing from a violent felony. Rather, it was a stolen car and the officer “jumped” into the path of vehicle.
Further the court of appeals noted another situation where improper tactics led to a constitutional violation. Specifically, the Seventh Circuit stated, in Est. of Biegert,
Sledd v. Lindsay is another example. In that case, we concluded that the officers acted unreasonably when they failed to identify themselves while forcibly entering a home to execute a search warrant in plain clothes, which resulted in their shooting a man who had armed himself thinking that the officers were intruders. 102 F.3d 282, 288 (7th Cir. 1996). We explained that “in a situation where a person has no reason to know that someone is a police officer, and the officer’s identity is concealed, the normal rules governing use of deadly force and right to resist are modified.” Id.
The case above is different from Ancheta’s case. In Ancheta’s case, five police vehicles (with at least one with emergency equipment activated) and one unmarked SUV were involved in the takedown attempt, which is distinguishable from the search warrant example above.
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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[i] No. 23-2546 (7th Cir. January 21, 2025 Unpublished)
[ii] Id. at 1-3
[iii] Id. at 5-6 (emphasis added)
[iv] Est. of Biegert, 968 F.3d at 698
