Facts
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On October 6, 2022, Gulfport Police received a 911 call about a silver Kia Soul with a Georgia license plate. The caller reported that the Kia had multiple occupants, that the occupants were brandishing firearms, and that the Kia had followed the caller’s vehicle through red lights. Officers Kenneth Nassar and Benjamin Ford located a vehicle matching that description in the parking lot of a Family Dollar store. As the officers entered the parking lot and activated their lights, the Kia’s occupants moved around inside the vehicle. Two males then exited the Kia and ran along the front of the store. One of them was later identified as Jaheim McMillan.
The encounter unfolded quickly. Officer Nassar announced “Gulfport Police” and ordered McMillan to stop. McMillan continued running. Officer Nassar then saw a dark object in McMillan’s right hand, again ordered him to stop, identified the object as a black handgun, and ordered him to drop it. McMillan continued toward the front entrance of the store. Officer Nassar then fired. The parties dispute whether McMillan pointed the gun at Officer Nassar. But the record and video evidence show that McMillan was holding a gun and had turned to face Officer Nassar when he fired. The gun recovered at the scene was a stolen Taurus 9mm handgun. It had seven live rounds in the magazine and one live round in the chamber.
Katrina Mateen (mother) sued the City of Gulfport and Officer Nassar under 42 U.S.C. § 1983. The 5th affirmed.
Analysis
Mateen argues that the district court improperly resolved disputed facts. She emphasizes that McMillan had little time to comply and that the video does not conclusively show that he aimed the gun at Officer Nassar. She also points to Officer Ford’s statement that he did not see a firearm. However, we need not decide whether Officer Nassar’s use of force violated the Fourth Amendment.
Even assuming that McMillan was trying to evade arrest rather than attack officers, and even assuming that he did not point the gun at Officer Nassar, Mateen has not shown that Officer Nassar violated clearly established law.
Mateen offers SCOTUS Graham v. Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985), as the basis for a clearly established right to be free from the use of deadly force by a police officer unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. But the U.S. Supreme Court has stressed that Garner and Graham do not by themselves create clearly established law outside an obvious case.
Mateen does not argue or explain how the relevant facts, which are not materially disputed for purposes of the clearly established inquiry, qualify as an “obvious” violation of clearly established law under Garner and Graham. Nor could she. Police responded to a report that the occupants of the Kia were brandishing firearms and following another vehicle through red lights. McMillan fled from the vehicle in front of an occupied store. He continued running after Officer Nassar ordered him to stop. He had a handgun in his right hand. He did not drop it when commanded to do so. He then turned to face Officer Nassar during a rapidly unfolding encounter.
Mateen’s only arguably fact-specific supporting authority, Cole, fares no better. Cole involved officers shooting a suicidal teenager who had not threatened others and was not fleeing through a public area with a gun. That case did not clearly establish that Officer Nassar could not use deadly force against an armed suspect who ignored commands and turned to face him outside an open store.
Because Mateen failed to meet her burden to identify a violation of clearly established law, we AFFIRM.
https://www.ca5.uscourts.gov/opinions/unpub/25/25-60602.0.pdf