The family of Christian Glass, who was shot and killed by police last year after calling for help from the side of the road, will receive $19 million from the state of Colorado and local authorities as part of a settlement, making it the largest police settlement paid by the state and one of the largest in the country.
Tag Archives: police shooting cases
Bodycam: Cop Shoots Cop | BOTH Suspended
Two police officers in Clearwater, Florida, were suspended following an incident wherein they both shot at each other in the darkness. They responded to a call about a man firing a gun in his backyard. They approached silently, in the darkness, positioned themselves, and when the man fired a round, they both essentially mag-dumped at each other. One of the officers was hit.
According to the Tampa Tribune:
Reid fired 18 rounds and Woodie fired six, according to internal affairs documents. Reid fired toward where he saw a “muzzle flash,” believing that direction to be Wassman’s location. However, he did not see Wassman, internal affairs documents say.
Woodie told internal affairs he saw a person in dark clothing holding a gun and believed he was firing at Wassman. However, one of Woodie’s bullets grazed Reid’s arm, and officers also found four “projectile materials” from Woodie’s rounds in a neighboring home.
The original body cam footage can be viewed here.
SWAT Team Surprises Kid on Couch and Shoots Him
On March 10, the West Virginia State Police Special Response Team executed a search warrant in McDowell County, West Virginia and shot 21 year old Darius Lester multiple times. Yesterday I went and met Darius and his family and examined the scene of the shooting. The truth is far from what the state police gave to the news media. Let me tell you what really appears to have happened. By the way, this is the same state police currently all over the news for being exposed as completely untrustworthy, as I just detailed in a recent video.
Here’s what was given to the news media:
One man was injured Friday during an officer involved shooting while troopers with the West Virginia State Police were serving a search warrant.
At about 5:45 a.m., members of the West Virginia State Police SRT acting in cooperation with the FBI served a search warrant at the residence of Jeremy Lester….
Upon entry, members were confronted by Darius Lester, 22 of Big Sandy, who was armed and attempted to attack the members with a hammer. Members engaged the suspect and shots were fired stopping the threat, Maddy said.
First aid was administered on scene until EMS arrived. Darius Lester was transported to Raleigh General Hospital for his injuries.
Here’s what really happened:
Darius had been asleep on the couch in the home’s living room, where he liked to sleep. Darius was unarmed at the time he was shot and was still on his bed, as indicated by the pool of blood on and underneath the couch where he was sleeping. Darius has no criminal record. He was not under arrest. He was not suspected of having committed any crime. He was merely sleeping on the couch in a house where police were executing a search warrant unrelated to him. Darius works as a coal truck driver. He works the night shift. He had just gotten off work at around 4 a.m. He then went to sleep shortly after getting home. Sometime after 5 a.m. the state police SWAT team showed up. Everyone was asleep, including Darius.
I’ve already examined the actual search warrant that formed the basis of the raid. It did not provide for a no knock entry. It also contained no allegations that anyone inside the home was armed or dangerous. In fact, from my understanding, nobody who lived in the home even had a criminal record at all.
Law enforcement was there to execute a search warrant based on the illegal possession of explicit photographs allegedly downloaded by Darius’ uncle. There were no allegations alleged in the warrant application that executing this particular search warrant posed any threat of danger to law enforcement. So why call out the state police’s SWAT team, the SRT? The allegations against the uncle solely pertained to downloading illegal photographs. There was nothing about violence or physical danger to police officers executing a search warrant. It’s my understanding that the uncle had no prior criminal history. Nor were there any allegations at all against Darius.
The press release said that “upon entry” they encountered Darius, who had a hammer. Well, the photographs I took yesterday show where Darius was when they encountered him: asleep on the couch in the living room, which is quite a ways from where they made entry. They would have made entry and rounded the corner into the living room before encountering him and waking him up, flashlights in his eyes, probably startled and confused.
The photographs of the blood stains show where the violence occurred – right on the bed/couch where Darius had been sleeping.
Why would Darius attack a SWAT team with a hammer? That’s absurd. He wasn’t under arrest. He hadn’t done anything wrong. Perhaps it’s more likely that once they realized they shot an unarmed man, who wasn’t even the target of their investigation, they grabbed a nearby hammer and came up with a cover story for why they shot him. Why would a SWAT team in full body armor be in fear for their lives of a guy, with no criminal record or charges, allegedly holding a hammer – especially one in his own bed. Are they that afraid? I mean, really? A hammer?
I’ve dealt with the West Virginia State Police SRT team before. I had a case in federal court in the Northern District of West Virginia – up in Doddridge County, where the state police SRT busted in on an elderly guy, who likewise had done nothing wrong (they were looking for a third party fugitive who used to work for him) and they literally scared the guy to death.
They put him in handcuffs and made him stand in his kitchen. The old man, in poor health, began having trouble breathing and asked to be released from his handcuffs. The tough guy state trooper, wearing full body armor and holding a machine gun (literally a machine gun, as it was full auto) refused, because as he explained to me when I deposed him, there were officer safety concerns, because they were in a kitchen. And there were sharp knives around. I’m not even joking. The man died and they just put him no the floor and began to take crime scene photos.
That was the case where part of the settlement was that the West Virginia State Police agreed to retrain their entire agency about the constitutional requirement to knock and announce prior to busting in someone’s house on a search warrant execution.
This seems awfully similar. I mean, what’s the point of having a SWAT team if you don’t get to use it from time to time, am I right? In my prior case there were, I believe, 17 different SWAT guys at the scene. I wonder how many they had here, that were so afraid of an innocent guy with a hammer? Even if he did have a hammer, perhaps if you didn’t bust in in the darkness and startle the guy out of a deep sleep, he wouldn’t have grabbed a hammer. Though I highly doubt he ever did. The evidence at the scene points to the gunshots occurring while Darius was still on his bed.
What really happened? Could it have been an accident? A mistake? Maybe they thought he was the uncle and nobody would care, given the allegations against him? One thing’s for sure. If there had been body cam, we wouldn’t have to speculate.
There’s no doubt that the case law would justify the police shooting someone coming at them with a hammer. There have been numerous similar cases with those allegations. The question is, did that even happen?
As discussed in some of the recent state police scandal videos, one of the allegations against the top brass of the state police is that they make the lower tier guys wear and use body cams, while the important people don’t have to. All the street level state troopers now have and use body cams. Why would the state police’s SWAT team not be given body cams? That would make it really easy. Does the footage show a guy running at them with a hammer and refusing to drop it? Or does it not? If the situation is so important and dangerous that they need to use the SWAT team, why does it not justify the use of body cams?
I’ll go ahead and speculate that they chose not to use them just in case they end up shooting someone like this. Then they can just grab a nearby object and say the guy was holding it, and refused to drop it. The South Park “he’s coming right at us” defense. Then, when it gets to court, they’re wearing their uniforms and fancy hats and they hope that the jurors will take their word over the victim’s word. That should be unnecessary. It should have been caught on video. Maybe it was, but the preliminary information suggests that there is no body cam footage.
This is yet another example of a completely unnecessary shooting of an innocent unarmed citizen by our government. For those of you with the thin blue line stickers and all the pro-Constitution stickers at the same time, this is your government. This is who is going to come to your house and confiscate your guns when the time comes. This is how they will treat you as well. NRA sticker on your truck? You better believe they’ll show up to your house at 5 am also, at a time when they think you’ll be asleep. They’ll be trigger happy too, since they’ll have been briefed on how much of a gun nut you are. This is where we are in this country. This is the road we’re headed down.
Then, after your government shoots you, what do they do next? Well, if you survive, guess what? They charge you with a crime to cover their exposure to a civil lawsuit. That’s exactly what they have done to Darius here. They’ve charged him with a felony, for allegedly attempting to harm this poor vulnerable SWAT team with a ball peen hammer. And he was so successful at it that no officers were even injured. To the contrary, the perpetrated was shot multiple times, including two rounds to the chest.
Why do they do this? Because any subsequent civil rights lawsuit is going to be bound by any factual findings contained in the underlying criminal case. So if they convict Darius of attempting to hit a police officer with a hammer, that fact will have to be taken as true by the federal court in the subsequent civil lawsuit.
Also, don’t worry, the West Virginia State Police is investigating themselves. This is the same agency that is currently all over the news for literally refusing to properly investigate themselves.
Again, this is a poor area of West Virginia that has for years been neglected by politicians. Corruption has been rampant in this area for years. That’s why it’s important to bring attention to what’s happening and watch very carefully.
Cop Points Gun at Man’s Head During Traffic Stop | Know Your Rights – Not Misinformation
There is a video showing a female cop suddenly pull her pistol and point it at a driver’s head during a routine traffic stop. Then there was a subsequent video providing commentary and advice about the situation. However, the information was incorrect. There’s unfortunately a lot of misinformation floating around about the rights of vehicle occupants during traffic stops. It’s important to know your actual rights and not misinformation that could really cause you some serious problems.
What are your basic constitutional rights at a traffic stop?
The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015).
Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. The Supreme Court has provided a list of acceptable tasks that are connected generally to safety and driver responsibility:
Officers will usually question a driver about the traffic infraction; they will run the driver’s license plate; they will request and review the vehicle’s registration and insurance; they will check for outstanding warrants; and lastly they will write a ticket. Officers also commonly question drivers about their travel plans. So long as they do so during the time that they undertake the traffic-related tasks for the infraction that justifies the stop (Arizona v. Johnson), officers may also ask questions about whether the driver has drugs or weapons in the car, or even walk a drug-sniffing dog around the car (Illinois v. Caballes). These unrelated tasks turn a reasonable stop into an unreasonable seizure if it “prolongs” the stop. Officers may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other potential crimes.
Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles (6th Cir. 2020).
Additionally, “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). That rule, the justification for which is officer safety, extends to passengers, as well. Wilson, 519 U.S. at 414–15, 117 S.Ct. 882. (United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012)).
As for the 9th Circuit, where this encounter took place, “pointing guns at persons who are compliant and present no danger is a constitutional violation.” Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018) (citing Baird v. Renbarger , 576 F.3d 340, 346 (7th Cir. 2009)).
We do not discount the concern for officer safety when facing a potentially volatile situation. But where the officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force.
Original video here.
Review video with the misinformation here.
“It’s Not a Gun Bro” – LAPD Footage Shows Suspect Holding Car Part
We’ve all seen the recent shooting footage out of Ohio. But that may have overshadowed another recent case where body cam footage was just released from the LAPD. Body cam footage reveals that just before officers shot an unarmed man holding an automotive part, that one of the officers said to the others, “it’s not a gun bro.” Then he was shot with no warning. Indeed, it wasn’t a gun.
Here’s the LAPD’s video:
Here’s the official account as per the LAPD:
On July 18, 2022, at around 7:20 p.m., Southwest Division patrol officers received an “Assault with a Deadly Weapon” radio call. The reporting party advised Communications Division that the suspect was armed with a black, semi-automatic handgun. Uniformed personnel observed the suspect matching the description listed in the comments of the radio call, walking on the north sidewalk of Martin Luther King Boulevard, just east of Bronson Avenue. Officers made contact with the suspect, who they believed was in possession of a handgun. The suspect refused to respond to officer’s verbal commands. As a uniformed supervisor arrived at scene, he also believed that the suspect was armed with a handgun. As the suspect walked away from the officers, he turned multiple times in their direction and pointed a black metallic object believed to be a firearm, which resulted in an Officer-Involved-Shooting (OIS). The suspect was struck by gunfire and taken into custody.
Determining whether an officer’s use of force violates the Fourth Amendment requires balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner (1985).That inquiry generally involves an assessment of factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor (1989).
In the context involved here, the Supreme Court has crafted a more definitive rule: An officer may use deadly force to apprehend a fleeing suspect only if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Garner , 471 U.S. at 11, 105 S.Ct. 1694. A suspect may pose such a threat if “there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm,” or if the suspect threatens the officer or others with a weapon capable of inflicting such harm. Id.
The key questions is whether the officer had an objectively reasonable basis for believing that the suspect posed a threat of serious physical harm, either to himself or to others.
The officer who fired here, fired from behind at a suspect who was running away from the officer. Thus it would be difficult to claim that he did so out of fear for his own safety at the moment the shots were fired. Did the officer therefore have an objectively reasonable basis for believing that the suspect posed an immediate threat of serious physical harm to others? The footage shows that no other individuals appear to be in immediate danger at the time the shots were fired. One police cruiser attempts to drive up and block the suspect’s path. Theoretically the officer, or officers, inside could be in harm’s way – though they also clearly were intentionally placing themselves in his path.
Perhaps the best argument for justification is what is known as the “fleeing felon rule” which arose out of Tennessee v. Garner. An officer can argue that permitting the suspect to escape posed a threat to the general public. A fleeing suspect’s escape can pose a threat to the public when police have probable cause to believe that the suspect has committed a violent crime. Deadly force to prevent such an escape can be reasonable if the suspect has demonstrated that he was willing to injure an officer who got in the way of his escape or that he was willing to persist in extremely reckless behavior that threatened the lives of all those around. (Orn v. City of Tacoma, Corp. (9th Cir. 2020).
Usually this would involve a vehicle pursuit, or some type of running gun battle situation, where the suspect has already tried to seriously injure someone. Here, however, though it was reported that the suspect pointed a gun at someone, the officers did not know that to be true as of yet. They had not observed him threaten anyone with a gun. They had not positively identified the person by that point. They merely observed that he was holding something that could be a gun, and that he refused to stop and talk with them. There’s no probable cause for the officers to believe that the suspect had committed any serious crime. The suspect was not given a warning of the imminent use of deadly force by the officers, which has been required by the 9th Circuit in prior cases.
To the contrary, here, the officers themselves were unsure of whether they many even had a gun. As we heard on the body cam footage, one of the officers said, “that’s not a gun bro.” And it wasn’t. At the end of the day, there is sufficient evidence here to deny qualified immunity and take the officer before a civil jury on an excessive force claim. The jury can decide whether the officer’s claims, whatever they end up being, are objectively reasonable.
Cops Arrest Homeless Vet for Being in a Median and do This to His Dog, Sunshine
Just released, body cam footage shows Gastonia, North Carolina police arresting a homeless veteran, suspected of panhandling in a median, and tasing his dog, named Sunshine. Unfortunately, Sunshine didn’t make it. This is brand new footage, ordered released by a judge, against the will of Gastonia law enforcement, who fought the release of the footage, supposedly to guarantee the homeless vet, Joshua Rohrer, a “fair trial.” Yeah, right. If law enforcement doesn’t want you to see it, then you probably need to see it.
Here’s the raw footage:
In the applicable jurisdiction – the Fourth Circuit – these cases seem to come out of North Carolina. There is a very recent published opinion out of the Fourth Circuit – Ray v. Roane – which deprived police officers of qualified immunity in a civil lawsuit for shooting someone’s dog. Here’s a video I just did a few weeks back in June on another similar video:
As an initial matter, it is well-settled that privately owned dogs are “effects” under the Fourth Amendment, and that the shooting and killing of such a dog constitutes a “seizure.” So it’s a different legal standard that standard police shooting cases. It’s an overall reasonableness standard, recognizing that police can shoot dogs where officer safety justifies the decision.
The question is whether, at the time the officer shot the dog, he held a reasonable belief that the dog posed a threat to himself or others. If the facts are sufficient to show that such a belief was unreasonable, then the law is clearly established in the Fourth Circuit that shooting a dog under those circumstances would constitute an unreasonable seizure of Mr. Rohrer’s property under the Fourth Amendment. That’s not a great way of looking at the value of our dogs, but that’s the actual legal analysis.
Here, the tasing officer, Maurice Taylor, claims that the dog “bit his boot.” Although I snipped the footage for Youtube reasons, you can click the link and watch the entire raw footage on Mr. Rohrer’s channel. You can see that the tasering took place well after the dog allegedly bit the boot. Immediately after the officer claims the dog bit the boot, you can see the dog wagging its tail. I have my doubts. Perhaps what really happened is the dog came up to him, wagging his tail, and Officer Friendly kicked her in the face. They don’t call them “jack booted thugs” for nothing.
That reminds me of the officer from yesterday’s video, where the guy he beat up actually attacked his fists. At the point where the taser is deployed, the arguable officer safety concern actually involves his partner. You can see the dog on video at this point, and the dog clearly doesn’t make any move to attack the partner.
All-in-all, the response to this itself speaks of the lack of reasonableness of the decision under the circumstances. And how many cops were present towards the end of the footage. Fifteen? Twenty? Who is paying these people, and where are they now?
Man Shot by Police Today While Onlookers Film in Beckley, WV
A friend of the eyewitness to a crazy police shooting that happened today in Beckley, West Virginia, sent me the footage captured via smartphone, while bystanders stuck in traffic watched it go down right in front of them. I already posted it on my twitter page, where it’s spreading quickly and obviously disturbing most people. I didn’t want to get in trouble again on Youtube, so I’m going to edit the version I post there, and then re-direct anyone who wants to see the entire thing to this post. So, here’s the footage:
Apparently there was a pursuit involving an unidentified subject, who is very clearly armed with what appears to be a handgun, and he is pointing it at his own head, as he walks quickly away from a small army of police officers pursuing him. He walks onto the public road, with bystanders in stopped traffic watching. It appears that the officers are ordering him repeatedly to drop the gun. It’s also obvious that he is in a bad place mentally, and is threatening suicide, or perhaps seeking “suicide by cop.”
Eventually, one or more officers start shooting the man. He drops the ground. Also dropping to the ground is the man’s handgun, which thereafter can be seen out of his reach, below where his feet are lying. What’s really disturbing here, is that the police officers’ guns continue to fire, and continue to impact the limp and incapacitated man lying motionless on the ground. The video then cuts off after a barrage of such shots. It’s unknown to me whether there were additional shots after the camera cuts out. I count at least 6 officers in the immediate vicinity, with more following behind them, as the first shots ring out. I tried to count the number of times they fired, but it seems impossible. It looks like the first two shots incapacitated the man and then the large majority of them came afterwards. In the video, you can see that the officers who are firing can see the handgun on the ground, because some of the rounds are hitting right where the gun is located on the ground. Perhaps they were still shooting at the gun? They keep shooting the man, as his body rolls over prone, with rounds hitting the asphalt all around him, as well as impacting his body, and apparently his legs.
I don’t think there’s much of an issue about the first shots fired. The case law is pretty clear that cops can shoot a suspect armed with a handgun, so long as he’s objectively viewed as an imminent threat. An officer may use deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner (1985). I looked closely, and can’t quite tell which hand is holding the handgun at the time the first shots are fired. It looks to be the right hand. And it’s also a close call whether the right hand, arguably holding the gun, rises towards the officer before, or after, the first shot. But it does start to come up.
However, the Fourth Amendment still prohibits law enforcement officers from using excessive or unreasonable force in the course of making an arrest or otherwise seizing a person, which includes shooting him. See Graham v. Connor (1989). The courts determine whether the amount of force used by police is reasonable based on an objective standard, looking at the the circumstances confronting the officer “immediately prior to and at the very moment” he fired his weapon. Greenidge v. Ruffin (4th Circ. 1991). Moreover, this is assessed specifically as of the “moment that force is employed,” Waterman v. Batton (4th Cir. 2005).
This took place in the jurisdiction of the Fourth Circuit, which has previously held that the number of shots fired by police, itself, is not dispositive, if other facts indicate reasonableness. See Elliott v. Leavitt (4th Circ. 1996). The Fourth Circuit has held a couple of times that “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” See Brockington v. Boykins (4th Circ. 2011). An officer will not be entitled to qualified immunity for engaging in a use of force that is “unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen….” Estate v. City of Martinsburg (4th Circ. 2020). Although the subject appears to have been armed at the time of the first shots, the video very clearly shows he was not armed for the majority of the shots. Thus, the courts could treat subsequent shots as against an unarmed subject. Of course there could be additional facts of which we’re unaware, such as information indicating to the shooters that another firearm was present.
I wonder if any of these officers were interviewed, or provided statements, immediately following the incident, while it was still fresh in their minds? Or will they be given the opportunity to sleep on it; to review video footage; to speak with union reps; to seek legal counsel; and to submit a written statement at a later time? Whatever the answer is to that – we peasants should be entitled to the same protections….
Officer Indicted for Manslaughter – Bodycam Video Just Released
Greensboro (NC) Police Officer Matthew Hamilton was indicted for manslaughter last week for the shooting of Joseph Lopez back in November of 2021. He was also fired and sued. The bodycam footage was just released. Let’s take a look and discuss the relevant law.
For some reason this is age restriction, even though you basically see nothing….
Here’s the federal Section 1983 civil rights lawsuit, currently pending:
Off-Duty Officer’s Insane Rampage With Coworkers Present – Watch a Coverup
On October 24, 2021, off-duty Bluefield, West Virginia police officer James Mullins arrived at Greg’s Sports Bar, in Bluefield, WV, to confront his girlfriend, who was a patron at the bar. Minutes later he pulled his firearm and a gunfight ensued with two men outside the bar. Just minutes after the shooting, Officer Mullins returned, along with uniformed coworkers of the Bluefield Police Department, and ended up violently attacking his girlfriend, also repeatedly physically assaulting the bar owner, all caught on both cell phone and body-cam video.
Did the coworkers stop his rampage, or did they allow him to repeatedly assault innocent victims? Did he get charged for assaulting the bar owner? Did he, or anyone get charged for the gunfight? The answer lies in the video footage, as seen from multiple angles and cameras. Revealed in this footage, released now for the first time exclusively here, you can watch an apparent coverup occur in real time, in one of the most bizarre police body-cam incidents I’ve ever seen.
During the ordeal, you can hear Greg, the bar owner, upset because he knows that the Bluefield police will try to blame him for their own officer’s rampage, and coverup the officer’s criminal misconduct. Days later, Greg’s alcohol license was indeed suspended by the WV ABC following a report by the Bluefield Police Department, which appears to have said absolutely nothing about the fact that it was their own employee causing havoc at Greg’s bar that night. Instead, Greg got the blame. This is Part 1. There will be a Part 2. Perhaps 3.
11th Circuit: Officer Granted Qualified Immunity After Shooting Innocent Homeowner at Wrong Address
In June of 2016 in Henry County, Georgia. Police sergeant Patrick Snook arrived at the wrong house and shot and killed the innocent homeowner, William David Powell, standing in his driveway. Sharon Powell, his wife, fled a federal civil rights lawsuit alleging excessive force against the officer. The Northern District of GA ultimately granted Summary Judgment in favor of the officer, granting him qualified immunity from standing trial in the civil case. She appealed to the 11th Circuit, which issued a published opinion on February 8. Here’s the full opinion, which you should read. Below I will post my takeaways and the basic law on police shootings.
An officer may use deadly force when he:
(1) “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others” or “that he has committed a crime involving the infliction or threatened infliction of serious physical harm;”
(2) reasonably believes that the use of deadly force was necessary to prevent es- cape; and
(3) has given some warning about the possible use of deadly force, if feasible.
Quoting Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).
This case focused on “Garner Factor” number 3. Is an officer required, as a bright line rule, to issue a warning prior to firing at a homeowner who appears with a gun? The Court held no. Only if “feasible.”
On the subject of warnings, we “have declined to fashion an inflexible rule that, in order to avoid civil liability, an officer must always warn his suspect before firing — particularly where such a warning might easily have cost the officer his life.” Penley, 605 F.3d at 854 n.6 (cleaned up); see also Carr v. Tatangelo, 338 F.3d 1259, 1269 n.19 (11th Cir. 2003). And the Supreme Court has instructed us that a plaintiff “cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.” City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (quotation marks omitted)…..
While it’s clear that in some circumstances an officer must warn before using deadly force where it’s feasible to do so, Garner, 471 U.S. at 11–12, decisions addressing how soon an officer is required to give a warning to an unarmed suspect do not clearly establish anything about whether or when a warning is required for armed suspects raising a firearm in the direction of an officer. See Garner, 471 U.S. at 4, 21 (unarmed teen burglary suspect); Perez, 809 F.3d at 1217 (unarmed man lying on his stomach); Lundgren, 814 F.2d at 603 n.1 (store owner who did not threaten the officer with a weapon). There is no obviously clear, any-reasonable-officer-would-know rule that when faced with the threat of deadly force, an officer must give an armed suspect a warning at the earliest possible moment. See White, 137 S. Ct. at 552 (concluding, where late-arriving officer shot armed suspect without giving a warning, it was not an obvious case under Garner’s general principles). Instead, what’s clearly established is that it “is reasonable, and therefore constitutionally permissible, for an officer to use deadly force when he has probable cause to believe that his own life is in peril.” Tillis v. Brown, 12 F.4th 1291, 1298 (11th Cir. 2021) (quotation marks omitted).https://media.ca11.uscourts.gov/opinions/pub/files/201913340.pdf
But see, Betton v. Belue, 942 F.3d 184 (4th Cir. 2019), from the Fourth Circuit, which was almost identical factually, but came out the other way. The difference? There was a factual dispute regarding whether the homeowner pointed the gun at the officer. That small detail probably made the difference, as the Court had to assume that the homeowner did not point the gun.
If Officer Belue or another officer had identified themselves as members of law enforcement, Officer Belue reasonably may have believed that Betton’s presence while holding a firearm posed a deadly threat to the officers. Cooper , 735 F.3d at 159 ; Elliott , 99 F.3d at 644. And had Betton disobeyed a command given by the officers, such as to drop his weapon or to “come out” with his hands raised, Officer Belue reasonably may have feared for his safety upon observing Betton holding a gun at his side. See, e.g. , Sigman v. Town of Chapel Hill , 161 F.3d 782 (4th Cir. 1998) (officer was justified in using deadly force after suspect failed to obey command to stop advancing toward officer while carrying a knife). However, under our precedent, Officer Belue’s failure to employ any of these protective measures rendered his use of force unreasonable.