§1983 Civil Rights: Excessive Force & Qualified Immunity – a Lawyer’s Standard
Qualified immunity does not insulate all officers from wrongful deaths or other personal injury claims under 42 U.S.C. §1983 for excessive force. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985); Massasoit v. Carter, 253 Fed. Appx. 295 (4th Cir. 2007); Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006); Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002); Haddaway v. Ellerbusch, 1993 U.S. App. LEXIS 16039 (4th Cir. 1993); Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993); Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Phomphackdl v. Spartansburg County, 2007 U.S. Dist. LEXIS 19895 (D.S.C. Mar. 20, 2007); Russo v. United States, 37 F.Supp.2d 450 (E.D. Va. 1999); Thompson v. Farmer, 945 F. Supp. 109 (W.D.N.C. 1996); Jordan v. Civil Service Board for the City of Charlotte, 153 N.C. App. 691, 570 S.E.2d 912 (2002), cert. denied 356 N.C. 672, 577 S.E.2d 672 (2003); and Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E. 2d 601 (2002), cert. denied, 353 N.C. 372, 547 S.E.2d 811 (2001). See also, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 227 n.157 (Spring, 2002) (“McGuiness I”) (“Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999)(denying qualified immunity in law enforcement personnel cases)”). “Officers are subject to civil, civil rights and criminal liability for excessive force,” see, e.g., McGuiness I at 206-207; despite the existence of qualified immunity.
Tennessee v. Garner, 471 U.S. at 11, clearly establishes that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” McGuiness I at 230. Schultz, 455 F.3d 477. “Generally, mere flight alone without more is not sufficient to warrant deadly force. Without some implied threat of harm to officers or others, fleeing suspects cannot be shot.” Id.
“The intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. at 9. “And it is clearly established principle of law that law enforcement officers may employ deadly force ‘[w]here the officer has probably cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’ Id. at 11. ‘Where [a] suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.’ Id. But ‘if the suspect threatens the officer with a weapon or there is probably cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible some warning has been given.’ Id. at 11-12.” Schultz, 455 F. 3d at 477.
“The evolving body of use of force law mandates a complete assessment of the facts, circumstances and reasonable beliefs of the officer….” See, e.g., J. Michael McGuiness, “Supreme Court Further Defines Police Use of Force Standards,” The Connecticut Lawyer (February 2002) (“McGuiness II”); J. Michael McGuiness, “Shootings by Police Officers are Analyzed under Standards Based on Objective Reasonableness”, 72 N.Y.S. Bar J. 17 (September 2000)(“McGuiness III”). See also, McGuiness I at 226 (stating “careful attention to the facts and circumstances of each particular case” is required). In “Tennessee v. Garner, 471 U.S. 1, 8-9 (1985),…the Court relied upon the ‘totality of the circumstances” in assessing reasonableness, see, e.g., McGuiness I at 219 n.89, 230; and a “literal application of this [so-called ‘reasonableness of the moment’ concept] may strain logic and the ‘totality of the circumstances’ framework because the course of events leading up to the use of force may further support or negate the need for force.” See, e.g., id. at 219. Hence the Fourth Circuit properly has applied the Court’s “totality of the circumstances’” analysis instead of the myopic “reasonableness of the moment” concept. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). This determination must include an evaluation of the full context of the situation, evaluating all the relevant factors. See id.” McClain v. Cumberland County, 1998 U.S. Dist. LEXIS 18592 (E.D. N.C. 1998). Cf., Scott v. Harris, 127 S.Ct. 1769 (2007)(determining qualified immunity based on a six-minute videotape “capturing the events in question,” a ten-mile vehicle chase).
On motion for summary dismissal, the facts must be viewed “in the light most favorable” to the injured party. Massasoit, 253 Fed. Appx. at 297; Clem, 284 F.3d at 550-551; Webb, 2008 U.S. Dist. LEXIS 61480, * 2-3. The defendant officer on a traffic stop in Massasoit twice shot and killed a suspect after he “tussled” and pepper-sprayed the suspect, and also twice shot another fleeing suspect; all “without warning”. Under these facts, the Fourth Circuit found the deadly force unreasonable, unjustified and clearly unconstitutional. 253 Fed. Appx. at 297. Similarly, because the plaintiff in Clem proffered that he was not a serious threat and “firing three shots are close range was an application of force that could have killed him;” the Fourth Circuit explained that “on the basis of Garner alone…, we would have to conclude that the constitutional right at issue in this case was ‘clearly established’.” 284 F.3d at 554. See, Phomphackdl, supra, 2007 U.S. Dist. LEXIS 19895, *7-11 (Magistrate’s Report and Recommendation that “accepted defendants’ accounts of the incident” was rejected by district judge and summary judgment on excessive force was denied); Russo, supra, 37 F.Supp.2d at 455 (“At this early stage of the proceedings, where the court is limited to the allegations contained in the complaint and must accord every reasonable inference to the plaintiff as the non-moving party, the court cannot determine [the unconstitutionality or constitutionality of the use of deadly force].”)
A genuine issue of material fact precludes summary judgment on immunity claims. See, Massasoit, supra; Clem, supra. “Despite the serious and dangerous nature of the situation at hand [in traffic stop], however, genuine issues of material fact remain as to whether [plaintiff] was making a non-compliant, dangerous movement [in the vehicle] in the split second before [the officer] fired his gun and whether [the officer], when he responded with deadly force to [plaintiff’s] movements, ‘ha[d] probable cause to believe that the suspect pose[d] a threat of serious physical harm’ to the [other officers] or to [the other passenger]. Garner, 471 U.S at 11.” Schultz, 455 F.2d at 478. “Although we do appreciate the tense nature of the situation at hand, the issue before us on summary judgment is fairly narrow. We determine only whether, viewing the evidence in the light most favorable to [plaintiff], we can say, as a matter of law, that a reasonable police officer in [this one’s] position could have believed that the suspect was making a noncompliant movement that ‘pose[d] a threat of serious physical harm, either to the officer or to others,’ warranting the use of deadly force. We are unable to do so here.” Id.**** “ ‘[T]he forecasted evidence, when viewed in the light most favorable to [plaintiff], established a violation of clearly established law.’ *** ‘[T]he district court should submit factual questions to the jury and reserve for itself the legal question of whether the defendant is entitled to qualified immunity on the facts found by the jury’.” Id. at 479. (italics in original). See, Thompson, supra, 945 F. Supp. at 112-113 (“But in this case there may well never have been a serious threat to Farmer because there is a genuine dispute of material fact as to Farmer’s location and whether he was being dragged by the car.”)(distinguishing Pittman v. Nelms,87 F.3d 116 (4th Cir. 1996)); and Haddaway, supra.
In 2002 in Jordan, the officer fired his weapon into the front of an approaching vehicle, next moved aside and fired additional shots into the side of the vehicle, and then fired more shots into the rear of the vehicle as it passed. One of the shots fired after the vehicle passed killed an occupant, and the officer was terminated for excessive use of deadly force resulting in wrongful death. Following Clem, the Court upheld the finding of excessive force de novo on undisputed facts. “In the instant case, the facts are not in dispute. Looking at this matter anew as we are required on de novo review, we conclude that [the officer’s] exercise of force was excessive under the facts and circumstances of this record. Having placed himself in the pathway of the car, resulting in imminent danger to himself, [the officer] had sufficient time to extricate himself from the pathway of the car, but failed to do so. Moreover, for any reasonable, prudent officer in the same or similar circumstances, the fear of imminent danger was removed after the vehicle sped passed [the officer] at the checkpoint on the evening of 8 April 1997. Accordingly, it naturally follows that [the officer’s] actions in firing into the rear of the vehicle after its passing were not based on any reasonable fear of imminent danger ….” Jordan, 153 N.C. App. at 698-699, 570 F.E.2d. at 918.
“Use of force cases often necessitate expert testimony on a range of issues. Many law enforcement disputes require specialized or technical knowledge beyond that usually understood by lay jurors. A number of cases demonstrate the admission of expert testimony in civil, criminal and administrative litigation involving use of force and related law enforcement issues. Law enforcement experts have testified in state and federal courts in North Carolina on a variety of law enforcement cases.” See, e.g., McGuiness I at 240-241 (citing inter alia Spell v. McDaniel, 824 F.2d 1384 (4th Cir. 1987), Id. at 241 n. 231). See also, McGuiness I at 242 (citing Kopf v. Skym, 993 F.2d 374 (4th Cir. 1993) inter alia for admission of expert testimony on “training,” “prevailing standard conduct” for certain use of force, and “accepted police practices”; and Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984) inter alia for “no error in the admission of expert testimony concerning the punitive nature” of a certain practice).
