Abandoned on Train Tracks by Police | Qualified Immunity? | State-Created Danger Theory

By now we’ve all seen the footage of the train in Colorado hitting the police car stopped on the tracks, severely injuring a woman in police custody who was placed handcuffed in the rear of the police cruiser. My immediate thought was qualified immunity. There can be no doubt that the police officer was directly at fault in causing the severe injuries to the woman in his custody. No doubt about it. But unlike a doctor who negligently injures someone, a police officer get to assert qualified immunity. 

Here’s the 8 minute clip showing the train hit the cruiser:

Qualified immunity is unfair and needs to be abolished. A lawyer representing this woman, if a lawsuit is filed, is going to have the legal requirement to point to some past clearly established case law describing the officer’s conduct as a civil rights violation. Well, how many cases have there been in any particular jurisdiction where police officers let people in their custody get hit by trains? Moreover, as I’ve explained before, to establish section 1983 liability, you have to allege intentional conduct – not negligence or incompetence. Some intentional or purposeful conduct. For this reason, when one police officer accidentally shoots their partner, there’s generally no liability. I did a video on that one already

I took a quick look at the case law in the jurisdiction where this train incident happened, which is Colorado, which is in the Tenth Circuit Court of Appeals. So that’s where you want to look first for federal civil rights case law. I have a theory of liability here. First, take a look at some of the new footage released, from another angle.

There’s a legal doctrine under section 1983 called the state-created danger theory. Basically, it allows a pathway for a plaintiff to establish section 1983 liability for a civil rights violation where the government may not have directly or intentionally caused the injury to the plaintiff, but created the possibility or likelihood that it would occur. This theory has been adopted in the 10th Circuit. Here’s what a plaintiff would have to prove: 

  1. the charged state … actor[ ] created the danger or increased plaintiff’s vulnerability to the danger in some way; 
  2. plaintiff was a member of a limited and specifically definable group; 
  3. defendant[‘s] conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; 
  4. the risk was obvious or known; 
  5. defendants acted recklessly in conscious disregard of that risk; and 
  6. such conduct, when viewed in total, is conscience shocking.

Estate of Reat v. Rodriguez, 824 F.3d 960 (10th Cir. 2016)

But to defeat qualified immunity, you still have to point to a prior case with a similar fact pattern. Again, a non-exhaustive review of 10th Circuit case law shows that the state-created danger doctrine has been applied: 

Off-duty police officer on personal business who crashed his police vehicle;

On-duty police officer who engaged in a high-speed chase;

Firefighter who crashed his truck into a car;

Police officer who caused the death of a bystander by instructing him to help physically subdue a suspect, who then shot the civilian; 

Social worker who removed a child from his mother’s home and placed him with his father, who killed him;

School official who suspended and sent home a special education student who subsequently killed himself;

State mental health administrators who eliminated a special unit for the criminally insane, causing the transfer of a murderer to the general hospital, where he killed his therapist. 

The common theme for liability in the 10th Circuit under the state-created danger theory is that the victims were unable to care for themselves or had limitations imposed on their freedom by state actors. This is very much like the deliberate indifference standard imposed on correctional officers entrusted with the care of inmates. The arrestee is unable to act herself. She can’t get out of the way of the train. Likewise, if a prison catches fire, inmates locked in their cells can’t get out on their own. 

I can think of a few other arguments and theories for liability. But this is an often-overlooked one, and popped into my head first. It seems to match our facts here. Watching the footage establishes, without much potential for dispute, that the arresting officer created the danger; that he rendered the victim incapable of helping herself; that he put her into harm’s way, and that the risk was obvious. You can see the fact that he had parked on the train tracks. No doubt the evidence would show that he was aware of the fact that these tracks were frequented by trains. You can actually hear the train coming in the body cam footage. 

If this woman is left with no justice due to qualified immunity, hopefully people will start paying attention. Qualified immunity serves no legitimate purpose. It’s the very definition of judicial activism. I’ll be watching this one to see what happens. 

Video Shows Teen Arrested Waiting For His Dad – Court Denies Qualified Immunity

In 2019, on a rainy April night in Sterling Heights, Michigan, 18- year-old Logan Davis had just gotten off work at a sandwich shop and was waiting under a nearby awning for his dad to pick him up and drive him home. A few minutes later, Davis ended up hand-cuffed in the back of a Sterling Heights police cruiser, having been forcibly taken to the ground and arrested for loitering. Davis subsequently sued the City of Sterling Heights and Officer Jeremy Walleman for unlawful arrest in federal court.

Recently, the federal court issued a memorandum opinion denying Officer Walleman qualified immunity. So we have both a video of what happened, and the subsequent opinion from a federal court after examining the video and sworn deposition testimony.

Here’s the Video:

And here’s the Order:

As I’ve explained many times before, you have stronger Fourth Amendment protections as a pedestrian, as opposed to an occupant of a vehicle. A warrantless arrest, like the one at issue here, is reasonable under the Fourth Amendment if supported by “probable cause to believe that a criminal offense has been or is being committed.” An officer has probable cause “only when he discovers reasonably reliable information” that that an individual has committed or is committing a crime. 

Where an officer lacks probable cause but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he or she may conduct an investigative “Terry” stop and briefly detain that person to investigate the circumstances. During a Terry stop, an officer may request that a suspect identify him or herself, and the suspect does not have a Fourth Amendment right to refuse the request. Additionally, a state may criminalize refusal to provide identification during a Terry stop. 

Section 35-17 of the Sterling Heights’ City Code of Ordinances prohibits loitering and provides that prior to making an arrest for loitering, the officer must provide the individual with an opportunity to dispel any concern or alarm – which can be accomplished by the individual identifying themselves and providing a reason for their presence. 

Section 35-19(B)(4) of the City Code provides that it’s a violation to fail to produce identification upon the request of an officer who is investigating possible unlawful conduct. 

If Officer Walleman had reasonable suspicion to investigate Davis for loitering under § 35-17, he could lawfully order Davis to produce identification then, under § 35-19(B)(4), arrest him if he refused. To conduct an investigatory stop, reasonable suspicion requires that an officer have more than a hunch—they must possess a particularized and objective basis for suspecting the individual of criminal activity. Such a determination of probable cause or reasonable suspicion must be based on the totality of circumstances, considering “both the inculpatory and exculpatory evidence”— that is, an officer “cannot simply turn a blind eye toward evidence favorable to the accused,” nor “ignore information which becomes available in the course of routine investigations.” 

In denying qualified immunity to Officer Walleman, the federal court held that, even if reasonable suspicion to investigate Davis for loitering existed early in the encounter—and it is not clear that it did—any reasonable suspicion, even arguable reasonable suspicion, was dispelled when Davis explained to Officer Walleman why he was standing where he was and showed Officer Walleman his Firehouse Subs shirt and badge. After that point, a jury could conclude, no reasonable officer would believe they had a justified suspicion of unlawful loitering, and without such a basis, Officer Walleman no longer had the legal authority to demand Davis’ identification and arrest him if he refused. 

The Court pointed out that Davis was standing near Firehouse Subs, wearing a Firehouse Subs shirt, which he showed to the officer, and that more specifically, he was standing under the Dickey’s BBQ doors because there was an awning – and it was raining. He is observed on the video not acting suspiciously – not peering in windows, but just waiting.

It always comes down to this though: that police officers can’t seem to do anything, or talk to anybody, without forcibly demanding an ID from people. If people refuse, it becomes time to teach a lesson about the authority of government – a power trip. However, two can play at that game. Now a jury gets to decide whether government did have that authority. Perhaps it would be easier to just be a polite public servant and use common sense. 

Ring Doorbell Saves the Day Again: Eviction at the Wrong House

It’s a relaxing summer afternoon. You’re visiting family about 15 minutes away from your home. You locked your doors before you left, like you always do. Your three dogs are safely secured inside your house. All of a sudden you get a notification from your Ring doorbell security camera, at your front door. You see two police officers and some other stranger standing on your doorstep. They just busted the lock off your front door. They’re in the process of entering your home. You have three dogs in the house and you immediately have awful thoughts racing through your head about police officers and dogs. Not knowing what else to do, and having no idea what’s happening, you confront them using the doorbell’s audio speaker. They tell you that they’re there to evict you. You have no idea what they’re talking about.

This was the experience of Jennifer Michele of Land O’Lakes, Florida, in Pasco County. It was a complete surprise to her, given the fact that she had no knowledge of any eviction proceedings against her. She had been living there for 13 years. She posted this footage to Tik Tok, and it went viral. Here it is…

The Maxim that “a man’s house is his castle” is older than our Republic, and deeply rooted in Anglo-American jurisprudence. As scholars have observed, it protects all levels of society, down to the “poorest man living in his cottage.” It formed much of the basis of the Fourth Amendment itself. While 4th Amendment protections have eroded over time almost everywhere else – cars, schools, sidewalks, airports, and so on, it has retained its original strength in the home. The home still receives the greatest protection under the Constitution. It’s our castle. This is expanding in many states, with “castle doctrine” and “stand your ground” laws, and other self defense protections for law abiding citizens. 

Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. The only exceptions are consent and exigent circumstances, which are not at issue here. 

Thus where law enforcement busts your lock off your front door, without a warrant, or in this case a valid eviction order, they violated your Fourth Amendment rights, by default application of the law. But are there any consequences? This is where qualified immunity comes in. 

There are two scenarios: 

1) Where the warrant or eviction order lists the homeowner’s correct address, but which is actually the wrong address. So on its face, there is a warrant for that address, but it was supposed to be a different address; or 2) where the warrant or eviction order lists an entirely different address and they just showed up and executed it at the wrong house. This could be equally applicable to arrest warrants where the wrong John Smith is arrested. Is the mistake in the warrant, or in the execution of the warrant? If the mistake is in the warrant, then how did it get there, and who was responsible? These questions are all highly important to the qualified immunity issue. The unfortunate reality is that qualified immunity is typically granted in these sorts of mistaken identity or address cases. Not always, but very frequently.

One must also remember that this is Pasco County, the same county as the video I recently posted showing the SWAT style entry into a woman’s home over a building permit inspection. That brings up what is most likely a better legal argument here, which is the existence of a policy of constitutional misconduct. This is likely not the first issue. Why is Pasco County law enforcement showing up in tactical gear, with very little information or communication, for an eviction? There may be a Monell Claim here, which would be important because a county or municipality cannot assert qualified immunity as a defense to Monell liability for a policy of constitutional violations.

The consequence of out of control government here was relatively harmless in the end. But often it’s not. Similar mistakes are often made, with tragic results. When law enforcement forcibly enters someone’s home, they do so with firearms, which often are used against occupants – either human or canine. Because, they have to get home safe at night. Nobody else does, necessarily, but they must, at all costs. Protect and serve. When you have the peace-of-mind of qualified immunity, you can just act first and sort out the damage later. Or, as we used to say in football, “let the paramedics sort them out.” 

Fifth Circuit Gives Qualified Immunity to City Officials After Free Speech Retaliation Arrest of Councilwoman

On July 29, the U.S. Court of Appeals for the Fifth Circuit released a published opinion in the case of Sylvia Gonzalez v. Edward Trevino, Mayor of Castle Hills that now appears to be headed to the U.S. Supreme Court. This is an important First Amendment Retaliation case where qualified immunity is the key issue. Qualified immunity is the most important issue in the fight for the civil rights of the American people. It must be defeated, which is why you need to learn about cases like this, which the media will never tell you about.

Here’s the opinion:

The case is being litigated by the Institute for Justice. They filed suit for the plaintiff, Sylvia Gonzalez, a retired resident of Castle Hills, Texas, who decided to run for city council, and became the first Hispanic councilwoman in Castle Hills history. I spoke with the Institute of Justice attorneys litigating this case on the same day the opinion was released, and they seemed very optimistic about the future of this case at the Supreme Court. 

At Ms. Gonzalez’s first council meeting, she accidentally took home with her petition which had been debated at the meeting. It was laying in her stack of paperwork. It was later discovered that the petition was in her possession, which as it turns out, was technically a misdemeanor crime. The petition sought to remove the city manager. This town has fewer than 5,000 residents. During her campaign, Gonzalez learned that many residents were unhappy with the performance of the city manager. As her first act in office, she submitted this petition to the council. It was entirely unintentional that she ended up taking the petition home with her. She was supporting this petition and had no reason to suppress it or hide it. It was purely unintentional, and it was her first meeting as a councilwoman. 

Well, the city leadership was unhappy with Sylvia Gonzalez. After the mistake was discovered, the mayor, Edward Trevino, requested that a Sergeant in the Castle Hills Police Department file a criminal complaint alleging that Gonzalez took the petition without consent. The first officer to investigate, a Sergeant, determined that no crime had been committed. Well, that was unacceptable to the mayor and the chief, so they turned to a so-called “special detective.” The detective decided that Sylvia committed a violation of Texas Penal Code §§ 37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he . . . intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” 

Special Detective Alex Wright obtained a warrant, and instead of using the typical procedure of obtaining a summons, rather than a warrant, for a nonviolent crime, as well as going through the district attorney’s office, the detective instead obtained a warrant and hand-delivered it to the magistrate himself. The use of this process prevented Sylvia from using the satellite booking function of the Bexar County Jail system, making her unable to avoid spending time in jail when arrested. 

There is clear evidence here that this was done with a retaliatory motive, in response to Sylvia Gonzalez’s support of the petition to remove the city manager and disturb their swamp status quo. Sylvia’s arrest enabled the city leadership to remove her from office, as well as to intimidate, punish, and silence her. There was plenty evidence of this. In fact, Sylvia was charged under a statute that has never before or since been used to arrest someone in her position. A “review of the misdemeanor and felony data from Bexar County over the past decade makes it clear that the misdemeanor tampering statute has never been used in Bexar County to criminally charge someone for trying to steal a nonbinding or expressive document.” Indeed, most indictments under the statute involved fake government IDs, such as driver’s licenses, social security numbers, and green cards. 

But here was the big problem: technically there was probable cause to charge her under the statute that was charged. So the question is, can law enforcement arrest and prosecute Sylvia in retaliation for her protected free speech, so long as probable cause exists to do so? In other words, this is like a mayor ordering the arrest of a political opponent for some minor crime like jaywalking, where technically the crime was committed, but where there never would have been any prosecution at all, but for retaliation against free speech. This is the dispute, and there is a split in the federal circuits. 

In the 2018 U.S. Supreme Court case of Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018), the Court held that a municipality could be liable under a Monell Claim where its leadership decides to selectively prosecute a particular person in retaliation for their speech. The federal circuits have differed on how broadly to interpret this holding. The Fifth Circuit, in last week’s opinion, has chosen a narrow interpretation. 

The jaywalking example is the ideal example, which was discussed in the opinion:

“If an individual who has been vocally complaining about police conduct is arrested for jaywalking,” the claim should not be dismissed despite the existence of probable cause because “[i]n such a case, . . . probable cause does little to prove or disprove the causal connection between animus and injury.” 

 The Court “conclude[d] that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 

Basically, their conclusion was that since no prior council-person had been prosecuted by the city for taking a petition home with them, then there was no evidence to support a theory of retaliatory selective prosecution. This is of course, absurd. This is like saying that law enforcement may engage in retaliatory prosecutions, so long as they choose a creative statute that has never been used before against the same type of defendant. 

The fact is, that Sylvia Gonzalez engaged in highly protected First Amendment conduct, and that as a result of that conduct, a conspiracy of government officials took a material adverse action against her for purposes of retaliation. This is already prohibited under federal law. As the dissenting federal judge noted in his dissent, the police officers and city leadership have been on notice of a string of legal authority, dating all the way back to 1689, that it’s unconstitutional to jail people in response to their petitioning the government.

Hopefully the U.S. Supreme Court will overturn this. The Institute of Justice is doing some great work, not just in this case, but in many different cases across the country. They are likely even jumping into one of my cases, so stay tuned for that. Check out the youtube video the Institute did on the Gonzalez case, back when they first started. There’s a donation link. They need donations now, more than ever. Please donate, if you want to help fund the fight against qualified immunity and government corruption. Here’s the Institute’s video on the case, with donation link:

Here’s the district court order, which originally denied qualified immunity, and which the defendants appealed to the Fifth Circuit:

And here’s the IJ’s response brief to the motion asserting qualified immunity to the district court, which is fantastic:

Raleigh County Deputies Continue to Enable the Family Court Search Judge in Defiance of the Supreme Court

The Raleigh County Sheriff’s Deputy defendants in the Family Court Judge Search case have requested qualified immunity from the federal court in their motion for summary judgment in the pending civil lawsuit. Unfortunately for them, they can’t claim judicial immunity, as the judge has, even where following orders of a judge. So they’re stuck with qualified immunity. But will they get it? Their depositions have been taken, and frankly, their testimony was quite shocking. Despite the fact that the WV Supreme Court declared in no certain terms that judges do not search homes, and that the March 4, 2020 search of Mr. Gibson’s house was unconstitutional and “serious misconduct,” both the defendant judge, as well as her current and former bailiffs, continue to defy the Supreme Court, even threatening to do it again.

Here’s Raleigh County’s motion, in full. The gist of their argument is that, even if they participated in a civil rights violation, they should be dismissed from liability, because it was a reasonable mistake of law, which is the basic argument for qualified immunity. Moreover, the department itself claims they didn’t have a formal policy which caused, or substantially contributed to, the civil rights violation. As you’ll see below, the arguments of their lawyers don’t match the testimony of the actual officers, who clearly admit to an ongoing policy of illegal judicial searches, and who apparently have no respect for the law whatsoever.

Posted below is our response to Raleigh County’s motion, which highlights the extremely troubling deposition testimony of two of the deputy defendants, Bobby Stump and Jeff McPeake, both current or former bailiffs of the defendant judge. Here’s a couple of highlights describing their deposition testimony:

Defendant Bobby Stump, who arrived shortly after the search and seizure began, testified that he served as Defendant Goldston’s bailiff for approximately ten years, and that during that time, he went with her to the homes of litigants “numerous times.” (Stump at 6:12-14, 19-24; 7:1-4). When asked to estimate the number, Stump stated, “There’s no way I could – over thousands of divorce cases . . . . There’s no way I could give you an accurate number. I mean, I have no idea.” (Stump at 7:19-24; 8:1)….

According to Defendant Stump, the arrest powers were utilized often while serving as Defendant Goldston’s bailiff. Stump testified that he’s arrested “dozens and dozens and dozens of people with Ms. Goldston.” (Stump at 13:22-24; 14:1-5)…. Stump testified that he personally looked for items in the home of a litigant “numerous times,” explaining, “[a]ll the judges sent me out to look for items” and that, “[i]n the middle of a court hearing they would send me out to look for items at a home.” Stump estimated this occurred dozens of times. (Stump 16:4-12)…. In fact, Stump described that he and Judge Goldston knew each other so well, that when they went into the homes of litigants, “she didn’t have to tell me anything . . . she could just give  a look and I would know what to do.” (Stump 51:4-12)….

Defendant Stump remains employed as a police officer with the Raleigh County Sheriff’s Office. He noted that, even after the March 4, 2020 incident, there has been no policy change within the department about bailiffs going to the homes of litigants. Indeed, Stump asserts that, “if Judge Goldston told me today to go to the house, I’d be the first one there.” (Stump 56:1-6). Even after the WVSCA declared that Judge Goldston engaged in an unlawful search of Plaintiff’s residence on March 4, 2020, Defendant Stump boldly declared, “I’ve never had a judge to ask me to come remotely [close] to breaking the law.” When asked whether he would violate the Constitution, if asked to do so by a judge, Stump responded, “I know without a doubt, no judge that I ever worked for would ever ask me to violate the law, so I’ve never been in that predicament and I can safely say I never will.” (Stump 58:19-23).

Even in the context of a criminal case, Defendant Stump testified that he would perform a warrantless search of a defendant’s home, if asked to do so by a judge, despite his decades of knowledge and experience with the search warrant requirement under the Fourth Amendment. This same blind allegiance, or ignorance, is what guided Stump on March 4, 2020. (Stump 60:2-21). McPeake likewise subjectively believes that a warrant is not required in order to perform a search of a litigant’s home, at the direction of a family court judge, based on the fact that the judge is personally present and directing their conduct. (McPeake 22:18-24; 23:1-4; 24:5-14, 22-24; 25:1-3).

The judge’s current bailiff, Jeff McPeake, likewise testified that he was specifically told that he was allowed to participate in home searches with judges, and that there has been no policy change since then – even after the WV Supreme Court formally censured the judge for the behavior, calling it “serious misconduct,” unconstitutional, and an “egregious abuse of process” which violated the privacy and sanctity of the victim’s home.

McPeake testified that he believed the search was authorized under department policy due to a conversation with a supervisor, Sergeant Lilly, who told him that it was fine to do so, because “we do do that from time to time.” Thereafter, no supervisor ever told McPeake not to do so. Moreover, as of the date of his deposition, he wasn’t aware of any written policy changes pertaining to bailiffs or deputies going to the home of a litigant with a judge. Nor have any of his supervisors proactively told him not to engage in similar conduct in the future, even though they’re aware that he continues to serve as a bailiff for Judge Goldston. Nevertheless, McPeake noted that his own common sense tells him he shouldn’t do it again. (McPeake 13:10-13; 40:11-24; 64:2-23; 65:9-17). It appeared to McPeake, after getting express authorization from a supervisor to participate in his first home search with a family court judge, that it seemed to be something that occurred on a regular basis. (McPeake 13:7-13; 15:3-8).

Thus, the sheriff’s department authorized the home search practice by judges, and apparently continues to authorize the unconstitutional practice, in total disregard of West Virginia law, not to mention the U.S. Constitution. If only the voters of Raleigh County had some way of holding their government officials accountable…..

Here are the deposition transcripts for both deputies:

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.

SCOTUS Issues Two Qualified Immunity Opinions this Week

This week the Supreme Court issued two separate rulings in qualified immunity cases involving allegations of excessive use of force by police officers. One out of the 9th circuit, involving an officer placing a knee on a suspect’s back for 8 seconds, and a second one involving a suspect who was shot and killed by police officers while charging at an officer with a hammer.

You may have seen the headlines around the interwebs about the SCOTUS strengthening qualified immunity in these two cases, or somehow changing the law in favor of the police. Is this the case? Since excessive force cases are my favorite, let’s go through these together. #QualifiedImmunity #ExcessiveForce #SCOTUS Freedom is Scary Ep. No. 78 (prerecorded, but scheduled to play at 10/20 at 8:00 p.m. ET)