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RAMMING AND SHOOTING FLEEING ARMED ROBBER – CONSTITUTIONAL CONSIDERATIONS

October 2015

by Brian S. Batterton, Attorney



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©2015 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On September 11, 2015, the Eleventh Circuit Court of Appeals decided Murphy v. Demings et al. [i], which serves as excellent review regarding use of deadly force on dangerous, fleeing suspects.  The relevant facts of Murphy, taken directly from the case, are as follows:

At about midnight on 21 November 2008, an armed robbery was committed at a 7-Eleven store. Shortly thereafter, police located a car matching the description of the car used in the robbery at a nearby home and began surveillance on the car. About one hour after the robbery, police followed the car from the home to a different 7-Eleven store.

The driver of the car -- identified later as Plaintiff -- began pumping gas and sat inside the car while the tank filled. In an attempt to prevent Plaintiff from driving away, two unmarked police cars parked directly in front of and directly behind Plaintiff's car. As observed by the district court, surveillance footage shows that at least one of the unmarked police cars had its blue lights on at the time. Then, Plaintiff put his car in reverse, hitting the police car behind him. Plaintiff then drove forward, hitting the police car in front of him, before he pulled away from the gas pump and turned out of the parking lot.

The district court found -- based on the surveillance footage -- that at least one of the police cars' sirens was activated seconds after Plaintiff maneuvered out from between the two police cars. After pulling out of the store parking lot, Plaintiff drove down the road -- with four unmarked police cars in pursuit. According to Plaintiff, he drove about 55 m.p.h. in a 35 to 40 m.p.h. zone. The record (including Plaintiff's deposition testimony) also demonstrates that at least one other civilian car was driving on the road in advance of Plaintiff during the pursuit.

Defendant Deputy Caron (who had not been present at the 7-Eleven parking lot) responded to a call over the police radio requesting help stopping an armed-robbery suspect who had hit two police cars. As Deputy Caron approached the area, he saw a car matching the description of the car used in the robbery; and he saw that the car was driving at a high speed and with no headlights on. Deputy Caron also saw at least one civilian car in the immediate area ahead of Plaintiff. In an effort to stop Plaintiff, Deputy Caron used his police truck to ram Plaintiff's car. After being rammed two times, Plaintiff's car spun out of control and came to a stop.

Plaintiff got out of the car and began immediately running away. Deputy Caron and another officer chased Plaintiff. Deputy Caron then saw Plaintiff make an "aggressive movement towards his waistband," and believed that Plaintiff was reaching for a gun. At that point, Deputy Caron fired ten to twelve shots at Plaintiff. Plaintiff was shot two times and fell into some bushes. Plaintiff was then apprehended and taken to a hospital for medical treatment. [ii]

Murphy later filed suit against Sheriff Demings and Deputy Caron and alleged that Deputy Caron violated his right to be free from unreasonable (excessive) force when he rammed his car and when he shot him as he fled on foot.  The district court awarded summary judgment to the Sheriff and Deputy Caron and Murphy appealed to the Eleventh Circuit Court of Appeals.

The court of appeals first set out to examine some relevant legal principles that relate to reasonable force under the Fourth Amendment.  The court stated:

Although suspects have a right to be free from force that is excessive, they are not protected against a use of force that is necessary in the situation at hand." Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotations omitted). No precise test or "rigid preconditions" exist for determining when an officer's use of deadly force is excessive. See Scott v. Harris, 127 S.Ct. 1769, 1777 (2007). Instead, in deciding the merits of a claim of excessive force, we must determine whether -- given all the facts and circumstances of a particular case -- the force used was "reasonable" under the Fourth Amendment. Graham v. Connor, 109 S.Ct. 1865, 1871-72 (1989).

"In determining the reasonableness of the force applied, we look at the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balance the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate." McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). We consider, among other things, "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, 109 S.Ct. at 1872. In such a fact-sensitive question, predicting the outcome of any particular case often becomes difficult because so many details must be weighed in the balance.

"The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. And we must allow "for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation." Id. "We are loath to second-guess the decisions made by police officers in the field." Vaughan v. Cox, 343 F.3d 1323, 1331 (11th Cir. 2003). [iii] [emphasis added]

The court then applied the principles above to facts of Murphy’s case.  First, they noted that Deputy Caron knew that Murphy was the suspect in an armed robbery that occurred about two hours prior to the pursuit.  Second, they noted that Murphy had also hit two police cars to evade arrest and then led police on a high-speed chase, disregarding blue lights and sirens.  Additionally, when Deputy Caron first saw Murphy, he was fleeing at high speed, with no headlights on, with at least one civilian car on the road nearby.  The court then held:

Given the totality of the circumstances, an objective officer in Deputy Caron's situation could have believed reasonably that Plaintiff posed a threat of serious physical injury to pedestrians, other civilian motorists, and to the officers themselves. Deputy Caron's decision to eliminate the threat of danger to bystanders and officers by disabling Plaintiff's car was objectively reasonable under the Fourth Amendment. [iv]

As such, Deputy Caron was entitled to summary judgment for ramming Murphy’s car as no Fourth Amendment violation occurred; further, the Sheriff was entitled to summary judgment because no underlying constitutional violation was found.

Next, the court set out to examine whether the officer violated Murphy’s rights under the Fourth Amendment when he shot him as he fled on foot.  The court looked at the facts relevant to this issue.  First, they noted that Murphy was a fleeing armed robbery suspect, who had already crashed into two police cars and engaged in a high-speed chase.  Then, after the crash, he crashed he fled on foot.  As he fled on foot, Deputy Caron observed him reach or make a sudden movement toward his waistband.  The court stated:

We also conclude that, under the circumstances, Deputy Caron's act of shooting Plaintiff was not outside the range of reasonable conduct. Deputy Caron was confronted with an armed robbery suspect who was fleeing police, and who had already hit two police cars without stopping and had engaged in a high-speed chase. When Plaintiff made a sudden movement toward his waistband, an objective officer in Deputy Caron's situation could have believed reasonably that Plaintiff was reaching for a gun and that Plaintiff posed an imminent threat of serious physical injury to the officers and to others. Faced with a "tense, uncertain, and rapidly evolving" situation, Deputy Caron made a split-second decision to fire his gun in an attempt to disarm or incapacitate Plaintiff. Given the circumstances, we cannot say that Deputy Caron's decision was unreasonable in the Fourth Amendment sense.

Although Plaintiff was running away from Deputy Caron when he was shot and had not threatened definitely the officers with a gun, "the law does not require officers in tense and dangerous situations to wait until the moment a suspect uses a deadly weapon to act to stop the suspect." See Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007). [v] [emphasis added]

The plaintiff also alleged that the use of deadly force against him was unreasonable because the officer failed to warn him as required by Tennessee v. Garner. [vi]  As a review, in Garner, the Supreme Court stated that deadly force may be used to prevent the escape of a fleeing, dangerous felon

[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical injury, either to the officer or to others." Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985). "Thus, if the suspect threatens the officer with a weapon or there is reason to believe that the suspect had committed a crime involving 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 12, 105 S.Ct. at 1701. [vii]

The court then applied the principles above to the facts of Murphy’s case.  They then held:

Under the facts and circumstances of this case, Deputy Caron's use of deadly force was not outside the range of reasonable conduct under the Fourth Amendment. An objectively reasonable officer possessing the same knowledge as Deputy Caron could have believed that the use of deadly force against Plaintiff was justified, to prevent serious injury to the officers and to bystanders. [viii]

Therefore, the court affirmed the grant of summary judgment in favor of Deputy Caron. 

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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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CITATIONS:

[i] No. 14-14171 (11th Cir. Decided September 11, 2015 Unpublished)

[ii] Id. at 2-4

[iii] Id. at 6-7

[iv] Id. at 7-8 ( See Scott, 127 S.Ct. at 1778 (an officer acted objectively reasonably in striking a suspect's car after the suspect engaged in a high-speed chase with multiple police cars, evaded police attempts to block his car, hit a police car, and drove recklessly); Sharp v. Fisher, 532 F.3d 1180, 1184 (11th Cir. 2008) (no Fourth Amendment violation occurred when an officer struck a suspect's car while the suspect was engaged in a high-speed chase, was being pursued by multiple officers, was driving erratically, and was in an area with several other civilian motorists).

[v] Id. at 8-9

[vi] 105 S.Ct 1694 (1985)

[vii] Mountoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)

[viii] Murphy at 9-10

 

 
       
 


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