Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week, reported Reason.
The same panel found that the officers are entitled to
qualified immunity and thus cannot be sued in connection with the incident. The
legal doctrine allows state actors to violate your rights without fear of civil
liability if the exact manner in which they misbehaved has not been declared
unconstitutional in a preexisting court precedent. (A practical example: Two
cops in Fresno, California, allegedly pocketed
$225,000 while executing a search warrant, but the victims were not
permitted to sue because no ruling on the books said that stealing under those
precise circumstances is a violation of someone's rights.)
On June 14, 2014, Bessemer Police Department (BPD) Officers
Daniel Partridge and Christopher Asarisi responded to a complaint from a woman
who reported what she thought was a domestic violence dispute somewhere nearby
and that she thought she heard two gunshots. When the cops arrived, they found
Marcus Underwood and Ray James, who appeared to be arguing.
The men immediately dispersed; Underwood, who got in his
car, responded that they were just "clowning." Both officers say they
told him to stop, but Underwood inched forward with "the foot off the
brake," according to Asarisi. The officers allegedly then began shooting
at his vehicle, prompting Underwood to accelerate and collide with Partridge,
who was not injured. They fired a total of 20 shots and continued to shoot from
behind as Underwood drove away. He ultimately crashed the vehicle into a house
and needed immediate medical attention.
Analyzing the case, the U.S. Court of Appeals for the 11th
Circuit found that the officers violated Underwood's Fourth Amendment rights.
"While Underwood was not obeying orders to stop and was evading talking to
the police, Underwood was not driving aggressively or in a threatening
way," wrote Circuit Judge Charles R. Wilson. "The car was still eight
feet away, [Partridge] did not warn Underwood that he would use deadly force,
and there was no critical need to prevent a known dangerous person from
escaping and harming others."
The most important bit: "We conclude that under the
totality of the circumstances a reasonable jury could find that the Officers'
use of deadly force was unreasonable and therefore unconstitutional."
But Underwood won't get that chance. It's not because he
doesn't have a plausible case; the court acknowledges the reverse. Rather, he
will not have the right to ask a jury of his peers to consider it because
neither the 11th Circuit nor the Supreme Court has litigated a case with almost
"The Officers are entitled to qualified immunity
because Underwood has not demonstrated that his rights were clearly
established," wrote Wilson. "As an initial matter, Underwood does not
point to a factually similar case, nor does he contend that a broader principle
applies here. And probably for good reason, as this case is not directly
analogous to other binding qualified immunity cases involving vehicles and the
use of deadly force."
It's a prime example of the outsourcing of such matters to a
few bigwigs on the federal judiciary as opposed to what the Constitution
prescribes: jury trials. Legislated into existence by the Supreme Court,
qualified immunity protects government agents from facing accountability even when
the courts admit they violated the Constitution—a privilege not bestowed to
anyone without government status. It has protected a cop who allegedly
beat a subdued man in a brutal fashion, a cop who destroyed
a man's vehicle during an illegal search for which he lied to get
consent, and more than two dozen cops who blew
up an innocent 78-year-old man's home during a SWAT raid that targeted
the wrong house. It has shielded cops who have shot children,
cops who assaulted
and filed bogus charges against a man for standing outside his own
home, and corrupt college administrators who flouted
a student's First Amendment rights on campus.
Underwood's version of events was corroborated by testimony
from Elizabeth Harrington, the woman who called 911 and watched from her porch
as it unfolded. Meanwhile, the officers contend that Partridge only began
shooting after Underwood accelerated. But the court highlights a
problem: Partridge's testimony contradicts itself at certain turns and also
fails to line up with Asarisi's statement.
"The district court should have recognized the inconsistencies
within Officer Partridge's own testimony and between the Officers'
testimony," said Wilson. "Of course, a jury could instead credit some
of the Officers' testimony and come to the same conclusion as the district
court—that the Officers' actions were reasonable. But these sorts of issues
should not be decided [by the judiciary]." They should be up to a
Underwood won't go before one. But could he file a suit
against the city? He has to contend with Monell, a legal doctrine
that shields municipalities from civil suits unless they had a concrete policy
that directly led to the alleged misbehavior. In some ways, it's a standard
even more rigorous than qualified immunity.
He lost there too. "Underwood does not provide evidence
of either a pattern or knowledge of improper training," noted Wilson.
"He only claims that both Officers were in 'cowboy mode' on the night of
the incident." Whether or not a jury would have agreed such behavior
merited a settlement for Underwood's injuries will remain a mystery.
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