Facts
In 2017, Tavis Crane was driving in Arlington, Texas with three passengers: Dwight Jefferson, Valencia Johnson, who was pregnant with Crane’s child, and Z.C., Crane’s two-year-old daughter. While Crane was stopped at a traffic light at approximately 11:38 p.m., Officer Elsie Bowden pulled up behind him. After the light turned green, Crane pulled away from the intersection and Bowden saw an object being tossed from the passenger’s side. She claims that she thought the object might be a crack pipe and called for backup; Roper responded.
Bowden turned on her police car’s lights and Crane pulled over. Bowden approached the passenger side of the vehicle and asked Jefferson what he threw out the window. Jefferson replied that the only thing he threw was a cigarette butt. Bowden asked Crane for his driver’s license and proof of insurance. Crane provided Bowden with his identification card, as he did not have a driver’s license. Bowden then noticed an object fall on the ground behind her, outside the window by Z.C.
She recognized the object as the red top of a large plastic Christmas candy cane and realized the object thrown from the car was the candy cane’s clear bottom half. Bowden laughed about the misunderstanding and handed the red piece back to Z.C. But she did not send the family on. Rather, she returned to her vehicle and ran a warrant check, which found that Crane had warrants for several misdemeanors and a possible felony probation violation.
Bowden requested additional backup and confirmation of the warrants and was informed that Officer Eddie Johnson was also en route. While waiting for the other officers to arrive, she confirmed five misdemeanor warrants from Grand Prairie but was still waiting for a reply from Dallas County for the felony probation warrant, and began writing Crane a citation for driving without a license.
At 11:47 p.m., Officer Johnson arrived. Bowden informed him that the passengers had been cooperative and that she wasn’t sure if Crane even knew he had a warrant out. Roper arrived after that conversation and received no briefing, knowing only the information relayed to his in-car computer display, which showed Crane’s unconfirmed outstanding warrant for a felony probation violation.
All three officers then approached Crane’s car at 11:50 p.m., by which point Crane had rolled up his window almost entirely. Bowden stood next to Crane’s window; Roper was behind Bowden, next to Valencia Johnson, with Officer Johnson on the other side of the car, next to Jefferson. Bowden asked Crane to step out of the car because he had outstanding warrants, which Crane denied. Bowden told Crane that if he did not get out of the car, he would face additional charges.
Crane said he needed to get Z.C. home to her mother. Bowden asked if he could leave Z.C. with the other passengers and alternatively offered to call someone to pick her up. Crane refused, insisting that he did not have any outstanding warrants and reiterating that he was not getting out. Bowden told him five tickets had been confirmed. Crane asked what the warrants were for. Bowden said she didn’t know yet. Bowden told Crane, “I need you to step out of the car, honey. Tavis if you go and do something stupid then we are gonna be breaking windows, it’s gonna get crazy, it ain’t worth it.”
Officer Johnson ordered Jefferson, sitting in the passenger seat, to turn off the car and give him the key. Jefferson began moving his hand toward the key to comply, but Crane told him to stop. Roper then ordered Valencia Johnson to unlock the rear driver’s side door where she was seated; she did.
Roper opened the door, unholstered his pistol, and ordered everyone to put their “f—ing hands up.” Crane, Jefferson, and Valencia Johnson all put their hands up. He initially pointed his pistol at Jefferson before entering the car, climbing over Valencia Johnson, and pointing his gun at Crane.
According to the passengers, Roper put his arm around Crane’s neck. Roper contends that he grabbed the hood of Crane’s sweatshirt. All three officers continued to order Crane to open the door and turn the car off. Officer Johnson circled behind Crane’s car to move next to Bowden as she shouted “Tavis don’t do it.” The car engine began to rev, and the car shook as the brake lights turned on and off sporadically.
Bowden reached for Roper in the back seat, and told Roper three times to “get out” of the car. Roper remained in the car. Officer Johnson broke the window next to Crane with his baton as Bowden began to move toward the rear of the car. The passengers contend that when Crane, with Roper’s gun pointed at him, moved his hand to turn off the car in compliance with Roper’s order, Roper shot him, his head fell backwards, the engine revved and the car lurched backward, striking Bowden—by now behind the car—before moving forward and running over Bowden again and speeding off.
Roper claims that Crane shifted the car in gear while the two struggled, and that it was only after the car ran over Bowden and after Roper warned Crane that he would kill him if Crane did not stop the car that Roper shot Crane twice. Roper claims that the first two shots “did not cause Crane to stop the vehicle, so he fired two other shots.”
After Roper shot Crane, the car careened down the road and Roper took the keys out of the ignition and steered the car to a stop. Officer Johnson caught up in his squad car and told Roper to pull Crane from the driver’s seat and perform CPR. Roper continued to shout and curse at Crane, asking why he had not stopped, but Crane was silent. An autopsy concluded that Crane was shot four times and died of gunshot wounds to his abdomen.
Crane’s mother and the other passengers filed a 42 U.S.C. § 1983 claim against Officer Roper, individually and in his official capacity. The plaintiffs allege that Roper violated their Fourth Amendment rights.
Finding Roper entitled to qualified immunity, the district court dismissed Crane’s claims against Roper. The 5th reversed.
Analysis
A. District Court Erred by Relying on Video
What happened inside Crane’s car is not visible in the dashcam video. As such, the video does not resolve the relevant factual disputes. It is not clear from the video when Roper shot Crane, when Crane became unconscious, whether the car moved before or after Roper shot Crane, and whether Roper had his arm around Crane’s neck or was grabbing Crane’s sweatshirt. Because the video evidence does not clearly contradict Crane’s account, for purposes of this appeal, we must take Crane’s account as true—that Roper had Crane in a chokehold and that Roper shot Crane before the car began to move.
We now look to U.S. Supreme Court case Graham v Conner to determine whether the excessive force was reasonable in this case.
B.1 Immediate Threat
First, we address whether Crane posed an immediate threat to the safety of the officers. Accepting the facts as the passengers allege, Crane was shot while unarmed with Roper’s arm around his neck. Roper first argues that he had a reasonable fear that Crane might have a weapon. But from his position, Roper could see if Crane was reaching for a gun, as could the other officers outside the vehicle, yet none of them—including Roper—reported a suspicion of a weapon. Roper could not have reasonably suspected that Crane had a weapon.
Roper alternatively contends that the threat came from the car. Ultimately, the car was not a threat until it began to move, which did not occur until Roper shot Crane. Whether Roper’s use of deadly force was reasonable may well turn on whether the car was in park or moving at the moment Roper shot Crane. But that is a question for the jury.
Finally, this Court considers the speed with which an officer resorts to force where officers deliberately, and rapidly, eschew lesser responses when such means are plainly available and obviously recommended by the situation. Officer Bowden demonstrated an admirable attempt to negotiate with Crane. Roper, on the other hand, shot Crane less than one minute after he drew his pistol and entered Crane’s backseat aside a pregnant woman and a two-year-old.
B.2 Severity of Crime
While the remaining two factors do not weigh as heavily upon our analysis, they yet demand attention. As to the severity of the crime at issue, Roper was attempting to effect an arrest for an unconfirmed felony probation violation warrant and multiple confirmed misdemeanor warrants. Although police officers have the right to order a driver to exit the car, they cannot use excessive force to accomplish that end.
B.3 Actively Resisting Arrest
The third Graham factor is whether Crane was actively resisting arrest or attempting to evade arrest by fleeing. On the present record, Roper shot Crane within 30 seconds of entering Crane’s vehicle, as Crane reached to turn off the vehicle. The car was in park and Crane pressed the accelerator to relieve the pressure on his neck. Taking the facts as we must, a jury may well conclude that it was not reasonable for Roper to believe that Crane was attempting to flee or that any such attempt to do so posed a threat to life. Additionally, officers must assess not only the need for force, but also the relationship between the need and the amount of force used. The only confirmed warrants against Crane were for misdemeanors. A jury could reasonably find that the degree of force the officers used was not justifiable under the circumstances. This factor favors Crane.
C. Clearly Established
It has long been clearly established that, absent any other justification for the use of force, it is unreasonable for a police officer to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others. See Lytle.
Crane was shot while he was held in a chokehold in a parked car while evading arrest for several confirmed misdemeanors and an unconfirmed felony parole violation. Roper was on notice that the use of deadly force is objectively unreasonable except in only one circumstance, where an officer has a reasonable belief that he or the public was in imminent danger. As previously discussed, Roper’s alleged belief that Crane had a gun was not reasonable, nor was his belief that a parked car posed a danger to himself, the passengers, or the other officers standing on the side of the car. When we accept the facts as we must, this case is an obvious one. Roper should have known he could not use deadly force on an unarmed man in a parked car.
https://www.ca5.uscourts.gov/opinions/pub/21/21-10644-CV0.pdf