In 2016, Kimula Porter called 911 and stated that her boyfriend, Travis Stevenson, physically assaulted her and her daughter with pepper spray, took her wallet, smashed a hole in the wall with a beer bottle, and fled. He then called and texted her saying he was going to kill himself. Stevenson was located by East Baton Rouge Sherriff’s Officer Michael Birdwell about an hour later.
Stevenson was in a car, which was turned off and parked next to an apartment building. An SUV was parked on one side of him and a dumpster was on the other side. The apartment building was directly in front of Stevenson’s vehicle and the police parked in back of Stevenson’s car and perpendicular to his vehicle.
Birdwell approached Stevenson’s vehicle on the drivers side and knocked on the glass window. Stevenson ignored him and started the car. As Birdwell was attempting to break the window with his pocketknife, Stevenson went in reverse and hit the police car so hard that the air bags deployed.
Detective Henning then arrived and Birdwell was now positioned in front of Stevenson’s car near the apartment building. Stevenson repeatedly yelled “kill me” as he shifted into drive and accelerated towards Birdwell. Henning then shot at Stevenson but hit one of the car windows and not Stevenson.
Birdwell jumped out of the way as Stevenson’s car hit a pole. He then shifted in reverse and hit the police car again. Other deputies arrived and one of them fired at Stevenson’s tires. This didn’t stop Stevenson who began to repeatedly hit the police car again and again. While Stevenson kept driving between the apartment building and the police car, Birdwell was trapped in Stevenson’s path.
Officers then opened fire on Stevenson who sustained seven gunshot wounds and died. The entire incident lasted 85 seconds from the time Birdwell spotted the car until Stevenson was killed. Stevenson’s survivors sued six officers under §1983 by claiming the officers violated Stevenson’s constitutional rights by using excessive force to seize Stevenson. District Court granted summary judgement and 5th affirmed.
Qualified immunity includes two inquiries. One question is whether the officer violated a constitutional right. Another question is whether the right at issue was clearly established at the time of the alleged misconduct. The 5th never addressed the clearly established prong as they found no constitutional violation in this case.
To establish excessive force under the Fourth Amendment, a plaintiff must demonstrate (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable.
Asking whether each officer’s resort to deadly force was unreasonable and excessive are viewed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Also, the “reasonableness” inquiry always requires the court to consider “the crime’s severity, the suspect’s threat, and whether the suspect is actively resisting arrest or trying to flee.”
The 5th Circuit cited three main reasons why the officers did not use excessive force in this case:
- Stevenson was using his car as a weapon;
- Stevenson exhibited volatile behaviors that contributed to the officers’ justification in firing to prevent death or great bodily harm (both his actions with his girlfriend before the police arrived as well as his behavior while police were present);
- Plaintiffs did not produce any evidence that suggested the officers might have had a reasonable alternative course of action. Plaintiffs’ counsel said that officers should’ve “stepped back and allowed Mr. Stevenson to finish the episode, and then they could have acted.” What did the 5th Circuit think about that alternative? “That’s absurd. Lieutenant Birdwell was inches from the front left bumper of Stevenson’s car while he was repeatedly driving it backwards and forwards and violently crashing into things. Whatever reasonable alternatives officers might have had, doing nothing and praying for the best is not one of them.”