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officer not liable for excessive force although video showed subject hand was empty

Facts

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During the early morning hours of March 31, 2017, Brian Poole was driving around Shreveport, Louisiana. He did not want to return to his sober living home because he had relapsed and would be drug-tested upon his return. A positive drug test would have likely resulted in the revocation of his parole and his return to prison.

A resident in the Broadmoor neighborhood, concerned about a truck that had made several passes down her street in the middle of the night, called the Shreveport Police Department. Officer Jon Briceno responded to the call. He located Poole’s truck, which was stopped at a stop sign for an unusually long time. Briceno activated his lights and sirens in an attempt to conduct an investigatory stop of Poole’s vehicle.

Poole refused to stop. Instead, he led Briceno on a slow-speed chase through the residential neighborhood. The dashcam footage shows that Poole ran stop signs, a red light, drove through two residential yards, and crossed into the wrong lane of traffic on a major thoroughfare to avoid hitting spike strips deployed by the police. Eventually, six patrol cars joined in the chase to stop Poole.

Poole evaded police for fifteen minutes during the slow-speed pursuit. Then, Poole jumped out of his truck and reached into the bed of his vehicle. Briceno also stopped his vehicle, moved to the left side of the vehicle door, and drew his weapon. Briceno testified that he shouted at Poole to show his hands, and while the audio is unintelligible, the dashcam video corroborates that Briceno yelled something at Poole. The video records that Poole then placed his right hand on the truck bed, moved his left hand towards the truck driver’s side door, and turned his head towards Briceno, who was behind him. Briceno then fired his weapon six times and wounded Poole in his back and thigh.

From the time Poole stopped his truck, the whole altercation spanned eight seconds. The dashcam video showed that Poole retrieved nothing from the bed of his truck, and he was unarmed at the time he was shot. Poole alleged claims for excessive force under 42 U.S.C. § 1983.  While the case was pending, Poole died. The district court conducted a bench trial (qualified immunity had been denied). The district court found in favor of the defendants and dismissed all claims against Briceno and the City of Shreveport.

The court determined that this case hinged on the parties’ fact dispute over whether Briceno could see that both of Poole’s hands were empty before he fired the first shot. The court credited Briceno’s adamant testimony that he could not see Poole’s left hand, as well as the particularly compelling testimony of the defendants’ expert witness, who testified that officers are trained to respond as Briceno did. The court also recognized the surrounding circumstances: “It was dark and the lights from the police vehicles were flashing.”

While the district court acknowledged that close review of the dashcam video revealed that Poole’s left hand was in fact empty, it determined that Briceno did not have the leisure to conduct such a close assessment of the scene. Based on all of this, the district court concluded that Briceno did not see Poole’s left hand, nor did he deduce that Poole’s left hand must have been empty because he was using it to open the truck door. Because Briceno reasonably believed that Poole was reaching for a gun when he reached into the back of the truck, the court found that his response was that of any reasonable policeman in the same situation.

Therefore, the court concluded that Briceno was not liable for use of excessive force because he had probable cause to believe Poole posed a threat of serious bodily harm when he reached into the truck bed. The court held that qualified immunity would protect Briceno from liability in this case because a reasonable officer could have believed that shooting Poole was lawful in light of clearly established law and the information Briceno possessed at the time of the shooting. The 5th affirmed.

Analysis

Poole’s estate contests the district court’s factual finding that Briceno could not see Poole’s left hand when he opened fire because Briceno has no credibility. At trial, Briceno testified repeatedly that he could not see Poole’s left hand when he first fired at Poole. The district court, sitting as fact-finder, credited Briceno’s adamant testimony. Based on this testimony and weighing the surrounding circumstances, the district court concluded that Briceno testified credibly and that he had, in fact, not seen Poole’s left hand.

Poole’s estate lodges many arguments why the district court should not have found Briceno’s testimony credible. But findings of fact made during a bench trial deserve great deference, and even more so when based on determinations of credibility. Based on the record before us, the district court’s finding that Briceno could not see Poole’s left hand at the time he fired his weapon is not clearly erroneous.

That the dashcam video shows that both of Poole’s hands were empty does not alter this conclusion. While the video could be viewed as contradicting the officer’s testimony, the district court concluded that the officer’s testimony was credible despite the video. Given our deferential standard of review, we decline to disturb the district court’s factual determination on that point.

Next, we review the district court’s determination that Briceno was entitled to qualified immunity. Qualified immunity shields officers from liability unless their conduct violates a clearly established federal right of which a reasonable person would have known. To overcome qualified immunity, a plaintiff must satisfy a two-part test by showing: (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct. This is an exacting standard that protects all but the plainly incompetent or those who knowingly violate the law.

Poole’s estate focuses on the factual disputes identified by our prior panel: (1) Whether Briceno warned Poole before firing; (2) whether Poole was turned away from Briceno during the shooting; and (3) whether Briceno could see that Poole’s hands were empty. The prior panel concluded that, if the three factual disputes were resolved in favor of the plaintiff, then there was a violation of clearly established law.

But, critically, at least the third factual dispute—whether Briceno could see that Poole’s hands were empty—was not resolved in favor of the plaintiff. Rather, the district court concluded that Briceno could not see that both of Poole’s hands were empty. Based upon this determination, the district court concluded that Briceno reasonably believed that Poole was reaching for a gun in the truck.

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. See Manis. Whether the suspect is armed is often the key factor in determining if a threat to the officer justifies the use of deadly force. Based on the district court’s finding that Briceno reasonably believed that Poole was reaching for a weapon, Briceno’s use of force is entitled to qualified immunity. See Batyukova (granting qualified immunity to an officer who shot a suspect who reached her hand behind her back toward her waistband out of the officer’s view); see also Manis (granting qualified immunity to officers who fatally shot a suspect who reached his hand under the seat of his car); Ontiveros (granting qualified immunity to officers who fatally shot a man who reached into a boot for what the officers believed could be a weapon).

As the district court noted, the facts of this case are tragic for all involved. But tragic facts in themselves do not prove liability. Rather, for an officer to be liable for use of excessive force under § 1983, he must have acted unreasonably. With the benefit of frame-by-frame view of the dashcam video, we know that both of Poole’s hands were empty when Briceno opened fire. But weighing the evidence at trial, the district court found that Briceno did not know that Poole’s left hand was empty at that moment in time. Based on the court’s finding that Briceno reasonably believed that Poole was reaching for a weapon, the district court properly held that Briceno was entitled to qualified immunity.

 

https://www.ca5.uscourts.gov/opinions/pub/22/22-30329-CV0.pdf