By Hannah D. Monroe, Esquire - Rumberger, Kirk & Caldwell
The United States Supreme Court recently held1 that an officer’s use of deadly force by shooting an armed individual before issuing a verbal warning did not violate a clearly established Fourth Amendment right, and therefore, the officer was entitled to qualified immunity. In finding the officer immune from suit, the court reversed the lower courts’ decisions and reaffirmed the need to conduct a fact specific inquiry when considering qualified immunity and comparing an officer’s actions to prior decisions interpreting the Fourth Amendment.
In this case, law enforcement officers responded to a call regarding a possible drunk driving incident. Two officers responded to a home where the suspect was located, along with his brother, and radioed another officer, Officer White, to provide backup. The two brothers became aware of the officers’ presence and asked who was outside their home.
The officers said, “We got you surrounded. Come out or we’re coming in” and “Open the door, state police.” One brother testified that they heard someone say open the door but never heard anyone identified as the state police. The brothers armed themselves. Officer White heard one of the brothers yell, “We have guns,” as he was running up to the house from his patrol car. Upon hearing that statement, he drew his gun and took cover behind a 50-foot stone wall in front of the house. A few seconds later, the suspect stepped out of the back door and fired two shots while screaming loudly. The decedent then opened the front window and pointed a handgun in Officer White’s direction. Another officer, who was hiding behind a truck, fired immediately at the decedent but missed. About five seconds later, Officer White shot and killed the decedent.
The decedent’s estate filed suit against all three officers, alleging violations of the Fourth Amendment. All three officers moved for summary judgment on qualified immunity grounds. The district court denied qualified immunity. A divided panel of the Court of Appeals for the Tenth Circuit affirmed. The majority held that the rule that a reasonable officer in the shooting officer’s position would believe that a warning was required before the threat of serious harm and that this rule was clearly established at the time of the incident. The court concluded that a reasonable officer in his position would have known that since the decedent and other individuals could not have shot him unless he moved from his position behind a stone wall, he could not have used deadly force without first warning the decedent to drop his weapon. Rehearing en banc was denied.
The Supreme Court vacated the judgment denying qualified immunity, holding that the officer did not violate clearly established law. The court iterated that “clearly established law” should not be defined “at a high level of generality.” The appellate opinion did not conclude that Officer White’s conduct – such as his failure to shout a warning – constituted a run-of-the-mill Fourth Amendment violation. The court recognized that the case presented a unique set of facts and circumstances in light of the officer’s late arrival on the scene. The Supreme Court wrote that “[t] his alone should have been an important indication to the majority that White’s conduct did not violate a ‘clearly established’ right.” The Court wrote:
Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedure, such as officer identification, has already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.
Respondents argued that Officer White arrived on the scene only two minutes after his codefendants and more than three minutes before shots were fired.
On the assumption that the conduct of the officers who arrived earlier did not adequately alert the inhabitants of the house that they were police officers, respondents suggested that a reasonable jury could infer that the officer who fired the fatal shot, Officer White, witnessed the other officers’ deficient performance and should have realized that corrective action was necessary before using deadly force. The Court did not express an opinion on that potential alternative ground for affirmance because neither the district court nor the appellate court addressed that argument.
The judgment denying qualified immunity to the officers was vacated and remanded. Justice Ginsburg wrote in her concurrence that the Court left open the propriety of denying summary judgment based on factual disputes over when Officer White arrived, what he witnessed, and whether he had adequate time to identify himself and order the decedent to drop his weapon before he shot him. These factual disputes have to be addressed by the trial court.
This case does not authorize using deadly force without first issuing a verbal warning. However, it emphasizes that clearly established law cannot be defined at “a high level of generality.” Use-of-force cases must be closely assessed on a case-by-case basis with careful consideration of the specific facts at issue. Only when officers are plainly incompetent or knowingly violate the law are they are at risk for losing their qualified immunity.
1 White v. Pauly, ___ S. Ct. ___ (2017)
Hannah Monroe is an attorney at the law firm of Rumberger, Kirk & Caldwell, P.A. in Tallahassee, Florida. She defends and advises government entities and their employees on employment and constitutional issues. Rumberger, Kirk & Caldwel provides litigation and counseling services in product liability, commercial litigation, construction, IP litigation, employment, insurance coverage, professional liability and toxic torts. Offices in Florida and Alabama. www.rumberger.com.