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ELEVENTH CIRCUIT HOLDS OFFICER ACTED REASONABLY IN SHOOTING MAN DURING DOMESTIC STAND-BY

May 2016

by Brian S. Batterton, Attorney



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©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On April 15, 2016, the Eleventh Circuit Court of Appeals decided Kenning v. Carli [i], which serves as an excellent review of the law pertaining to when deadly force is reasonable under the Fourth Amendment.  The relevant facts of Kenning, taken directly from the case, are as follows:

On March 15, 2012, Lisette Galarza requested that the Lakeland police department assist her in retrieving her belongings from the trailer she had previously shared with Robert Cortes. Lakeland police officers Daniel Carli and Jordan Hernandez responded to the call, and were advised by dispatch that the owner of the trailer was known to be armed with a gun. The officers met Galarza, who was riding in a car driven by her friend Kimberly Olson, near the entrance to the trailer park where Cortes lived. Galarza told the officers that she and Cortes had a history of domestic violence problems and had been arguing. She said that she wanted to retrieve some personal items from Cortes's trailer but was afraid to go into the trailer alone, and that she needed police assistance to ensure there were no problems. Carli asked Galarza if Cortes had a gun, but Galarza responded that she did not know.

The officers subsequently followed Olson and Galarza to Cortes's trailer. When they arrived, Olson pulled into the driveway and parked close to the front door of the trailer. The officers parked their police cruisers next to and behind Olson's car. Without activating their lights or sirens, the officers exited their cruisers and positioned themselves in the yard within five to fifteen feet of the trailer door. Specifically, Carli stood beside a large tree directly in front of and about fifteen feet away from the door, and Hernandez stood slightly to the right of Carli, also facing the door and standing about five to ten feet away from it. Olson remained in the yard, standing beside her car and in a position where she could see the trailer door.

The door of Cortes's trailer was approximately three steps off the ground. Galarza walked up the steps, knocked on the door, and announced that she was there with the police to pick up her belongings. She walked back down the stairs and into the yard. A few minutes after Galarza knocked, Cortes looked through his blinds at Galarza and the officers. He then opened the door to the trailer and stood in the doorway with a gun in his right hand. Carli yelled "Gun, gun, gun" and drew his own gun. Upon hearing this, Hernandez also drew his gun and used his shoulder mic to signal an emergency on his police radio.

The officers yelled at Cortes to drop the gun, put his hands up, and get down onto the ground. Although Cortes did not immediately comply, he eventually placed the gun inside the threshold of the open trailer door, raised his hands up to a position level with his head, and started to walk down the steps. When Cortes reached the bottom step, Carli instructed him to get "all the way down on the ground, lying face down on the ground." But Cortes did not get down on the ground; rather, he stopped moving forward and yelled something at Carli. Then, according to the officers, Cortes turned away from them, took a step up and back towards the trailer door, and reached with his left hand for the gun that lay in the doorway.

Both officers told Cortes to "Stop." Cortes did not touch the gun, and he had not previously threatened anyone with it. Nevertheless, the officers testified that they believed Cortes was trying to get the gun and that they feared for their own lives, as well as for the lives of Galarza and Olson, should he succeed. Both officers stated that they fired at Cortes after he turned away from them and as he was reaching for the gun in the doorframe. Carli fired six times and Hernandez fired three times. Hernandez hit Cortes once, in the back of his right arm, and Carli hit Cortes six times, in his back. Cortes fell and landed face down in front of the steps.

Karenetta Wood, a neighbor who witnessed the incident from her nearby trailer, provided conflicting but inconsistent testimony about the events immediately preceding the shooting. Wood testified that Cortes walked out of the trailer with his hands up "near his shoulders." She stated that she could tell Cortes's hands were empty because she could see his fingers in the air. Nevertheless, Wood heard an officer say, "Put the gun down." Wood initially testified that Cortes was facing the officers with empty, raised hands when he was shot. But she later admitted that she did not know whether Cortes had turned away from the officers or made any other movements prior to the shooting, and that she did not see where the bullets struck Cortes, although she assumed it could not possibly have been in the back.

Carli immediately reported the shooting, and requested EMS assistance. Galarza began screaming hysterically, yelling at Carli that she would sue him if Cortes died. Unsure whether any more people were in the trailer and with the gun still lying in the doorway, the officers secured Galarza, took a position of cover, and redrew their guns. They did not render medical aid to Cortes or make any other physical contact with him until other officers arrived on the scene. Backup officers eventually arrived, and they searched and secured the trailer. Cortes died at the scene. [ii]

Kenning, Cortes’ estate’s personal representative, sued the officers on the estate’s behalf for violating Cortes’ right to be free from excessive force under the Fourth Amendment.  The officers filed a motion for summary judgment and qualified immunity.  The district court granted the officer’s motion and the suit was dismissed.  Kenning appealed to the Eleventh Circuit Court of Appeals.

On appeal, Kenning had to show that (1) the officer violated Cortes’ Fourth Amendment rights by shooting him, and (2) that the law was clearly established at the time of the incident such that any reasonable officer in the same situation would have known his conduct was unlawful.

The Eleventh Circuit then set out to determine the first question, particularly whether the officers violated Cortes’ rights when they shot him.  The court stated:

Plaintiff's excessive force claim is analyzed under the "objective reasonableness" standard of the Fourth Amendment. Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (citing Graham v. Connor, 490 U.S. 386 (1989) and Tennessee v. Garner, 471 U.S. 1 (1985)). Reasonableness in this context depends on all the circumstances relevant to an officer's decision to use force and the amount of force used. See id. We view the circumstances "from the perspective of a reasonable officer on the scene." Id. (quotation marks omitted). And we allow for the fact that officers are often required 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. (quotation marks omitted).

It is reasonable, and therefore constitutionally permissible, for an officer to use deadly force against a person who poses an imminent threat of serious physical harm to the officer or others. Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir. 2005). See also McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1246 (11th Cir. 2003) (finding no constitutional violation where an officer shot a suspect he "could reasonably perceive" as posing "an imminent threat of violence to the officer and other bystanders"). [iii] [emphasis added]

The evidence in this case shows that Cortes answered the door holding a gun.  After verbal commands from the officers, he put the gun down in the doorway and came outside to the bottom of the steps.  However, the evidence also shows that Cortes then ceased following verbal commands and turned around and started moving back toward the doorway where the gun was located.  It was at that point, believing Cortes was going for the gun, that the officers shot him.  The autopsy report shows that he was shot only in the back which supports the officer’s statements that Cortes turned around and was moving toward the doorway where the gun was located.  The court did note that there were two civilian witnesses that gave conflicting testimony, but their testimony was refuted by the autopsy report. 

The Eleventh Circuit then stated:

[T]he record evidence conclusively establishes that, in defiance of Carli's order to get down on the ground, Cortes turned away from the officers and back toward the gun lying in the open trailer doorway just prior to being shot. Cf. Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) (denying qualified immunity where the plaintiff's account of the events preceding a police shooting could "reasonably be harmonized" with the forensic evidence).

Based on the record evidence, there is no question that a reasonable officer could—and likely would—have perceived Cortes as posing an imminent threat of serious physical harm to themselves and to Galarza and Olson, who were standing nearby. See Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (11th Cir. 2009) (concluding that the defendant officers reasonably reacted with deadly force to the imminent threat posed by a suicidal man who was ignoring their commands to drop the gun he was holding and to show his hands). The officers were not required to wait and see what might happen if they did not stop Cortes from reaching the gun that lay in the open trailer doorway. Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) ("[T]he law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect."). Their decision to use deadly force was reasonable under the circumstances, and thus in compliance with the Fourth Amendment. [iv] [emphasis added]

Even though the court found that the officers acted reasonably under the Fourth Amendment and that resulted in summary judgment for the officers in this case, the Eleventh Circuit still set out to determine the result of the second part of analysis, particularly, whether the officers violated clearly established law when they shot Cortes.  The court stated: 

To be clearly established, the contours of a right must be "sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Id. "The salient question is whether the state of the law at the time of an incident provided fair warning to the defendant[] that [his] alleged conduct was unconstitutional." [v]

The court then noted that there was no case law similar to Cortes’ situation that would have placed the officers on notice that the shooting him would not be reasonable under the Fourth Amendment.

As such, the court affirmed the decision of the district court.

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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. 15-12975  (11th Cir. Decided April 1, 2016 Unpublished)

[ii] Id. at 2-6

[iii] Id. at 10

[iv] Id. 15-16

[v] Id. at 17

 

 
       
 


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