An officer in Arlington, Texas, pulled over O’Shae Terry and his passenger, Terrence Harmon, for driving with an expired registration tag. After taking their information, the officer advised them that she smelled marijuana coming from the car and, as a result, had to search it.
Another police officer, Bau Tran, arrived on the scene and approached the car from the passenger’s side next to a curb. While the first officer went back to her patrol car to verify Terry’s and Harmon’s information, Tran waited with the two men. Tran asked them to lower the windows and shut off the vehicle’s engine, and Terry at first complied.
After some small talk, Terry started raising the windows and reaching for the ignition. Tran immediately shouted “hey, hey, hey, hey,” clambered onto the running board of the SUV, and grabbed the passenger window with his left hand. Tran reached through the passenger window with his right hand and yelled “hey, stop.”
Tran retracted his right hand and rested it on his holstered pistol. Then Terry fired the ignition and shifted into drive. Just after the car lurched forward, Tran drew his weapon, stuck it through the window past Harmon’s face, and shot five rounds, striking Terry four times which caused his death.
Tran fell off of the vehicle but survived and the passenger gained control of the vehicle and stopped it. Both Terry’s estate and Harmon sued Tran under §1983 for Tran’s alleged violation of the Fourth Amendment. They also sued the City of Arlington alleging municipal liability. The district court granted summary judgement to the officers and its municipality. The 5th affirmed the summary judgement against the officers and the city. Although not required, they chose to address both the constitutional violation prong as well as the clearly established prong in their ruling.
A. Constitutional Violation
Because Officer Tran used deadly force to “seize” Terry, the relevant Fourth Amendment questions are whether the force was “excessive” and “unreasonable” as judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight (the 5th was not persuaded by plaintiffs alleging that Tran could have jumped off the running boards). That calculus must embody allowance 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.
In evaluating whether the officer used “excessive” force, courts consider 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. This court’s cases hold that an officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm to the officer or to others. A court must be cautious about second-guessing the police officer’s assessment of the threat level.
In this case, Terry started to roll up the windows and reach for his keys despite the officer shouting for him to stop. The officer then stepped onto the running boards and continued to tell Terry to stop but was ignored as Terry started to drive off. The video showed that about a second after Terry accelerated, Tran fired his gun at Terry.
Tran fell off the vehicle onto a busy street and narrowly missed being run over by Terry. Although speed of resorting to using deadly force could be relevant if the officer deliberately ignored reasonable alternatives, it was not a factor in this case where the officer did not have the luxury of engaging in further deliberation or negotiation. Tran’s use of deadly force was not excessive under the circumstances because he could reasonably apprehend serious physical harm to himself as an unwilling passenger on the side of Terry’s fleeing vehicle.
B. Clearly Established Law
A right is “clearly established” only if preexisting precedent has placed the constitutional question beyond debate. And, as the Supreme Court has repeatedly admonished lower courts, we must define that constitutional question with specificity. To overcome qualified immunity, the law must be so clearly established that every reasonable officer in this factual context—an officer holding onto the side of a fleeing car where the driver has ignored instructions to stop— would have known he could not use deadly force.
The plaintiffs primarily cited Lytle, another case from the 5th, where suppression was denied to officers. In Lytle, a police officer fatally shot a teenage passenger in a fleeing car that was, allegedly, “three or four houses down the block” from him. This court rejected the officer’s qualified immunity defense because by the time the car was three or four houses away, a jury could conclude that any immediate threat to the officer had ceased.
Officer Tran, in contrast, shot when the SUV started moving while he stood on the running board. The danger he faced was both direct and immediate. Lytle does not in any way clearly establish the law that every reasonable officer in Tran’s position would have known he could not use deadly force.
Because the plaintiff must point to a case almost squarely on point, qualified immunity will protect all but the plainly incompetent or those who knowingly violate the law. Here, the plaintiffs failed to identify any clearly established law that would place beyond doubt the constitutional question in this case, whether it is unreasonable for an officer to use deadly force when he has become an unwilling passenger on the side of a fleeing vehicle. As a result, their excessive force claims cannot succeed.
C. Harmon’s (passenger) excessive force claim
Harmon argued that Tran used excessive force by firing his weapon in close proximity to Harmon’s face. That is a bystander theory. Harmon’s bystander theory fails because there is no constitutional right to be free from witnessing police action. Bystander excessive force claims can only succeed when the officer directs the force toward the bystander—that is to say, when the bystander is not really a bystander.
In this case, Harmon does not allege that Tran fired indiscriminately into the car. Rather, he alleges that Tran stuck his gun through the passenger window—mere inches away from the face of Harmon—and fired. Thus, he was not within the purview of Tran’s gunfire and his bystander theory fails.
D. Municipal liability claims
The final issue is whether the district court erred in dismissing Terry’s and Harmon’s claims against the City of Arlington. The plaintiffs press two theories of municipal liability: the city failed to discipline Tran, despite having actual knowledge of his repeated incidents of allegedly violent misconduct; and the city had constructive knowledge of the Arlington Police Department’s alleged custom of using excessive force with racial bias.
A governmental entity, however, may only be held liable in a § 1983 suit when the complained of constitutional injury, here the use of excessive force, results from “execution of a government’s policy or custom.”
In short, the plaintiff would have to show that Arlington had a 1) policy or 2) custom (informal policy) or 3) a failure to train (deliberate indifference standard) towards its officers that caused the constitutional violation. The plaintiffs had nothing to support this assertion and it was thus denied.