Facts
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Officer Derek Bristow responded to a single-vehicle accident and discovered the vehicle was registered to Colton Carico. Carico was not at the scene, so Officer Bristow began driving to his address. On the way, Officer Bristow encountered a witness who described seeing a white male get into a tan vehicle with an Oklahoma license plate. When Officer Bristow arrived at Carico’s address, he found a sedan with Oklahoma license plates in the driveway. Kayla Reger answered the door and identified herself as Carico’s girlfriend. She repeatedly denied picking Carico up or even seeing him. Reger ultimately admitted she was lying. Officer Bristow then asked to speak with Carico. Carico appeared and spoke to Officer Bristow through an open window in the storm door. Though Carico acknowledged he had been in an accident, he claimed someone else was driving but had “disappeared.” When asked to step outside, Carico instead closed the interior door.
Seconds later, Reger opened the interior door and told Officer Bristow that Carico was “really mad.” Officer Bristow explained to Reger that he wanted Carico to step outside “due to his slurred speech and his red, glossy eyes.” Carico returned to the door and insisted he was not driving during the accident. When asked how much he had had to drink, Carico responded, “enough for you not to know.” Officer Bristow threatened to arrest Carico if he did not cooperate. Reger then exited the home. Carico remained inside watching through the open storm door window briefly before disappearing into the home. A few minutes later, Carico closed the interior door again while Reger remained outside. Approximately one minute later, Carico opened the door again and asked if he could go to bed. Officer Bristow told him no and to step outside.
Carico then stepped outside the house but remained next to the open door. He was holding the barrel of a rifle to his chin with his left hand, while his right arm was straight down near but at least for some of the time not on the rifle’s trigger. Carico said he would shoot himself in the head. Officer McCraw and Officer Bristow each yelled “drop the gun” once, and Bristow yelled “move” while Reger repeatedly yelled “no!” Carico turned and began moving back inside the house. His left hand remained on the rifle, holding it upright with his hand halfway between the stock and the muzzle.
It is unclear where Carico’s right hand was until one second before he was shot, when the video footage shows Carico’s right hand was off the rifle while he used his right arm to push the door open as he moved inside. After Carico had completely turned and was facing inside the house, Officer Bristow shot him once in the back. The bullet struck Carico’s spine and permanently paralyzed him. Approximately five seconds had passed between Carico stepping outside with the rifle and Officer Bristow shooting him. During that time, Carico never pointed his weapon at anyone but himself or threatened to harm anyone but himself.
Carico sued, asserting claims under 42 U.S.C. § 1983 against Officer Bristow. He claimed that Officer Bristow used excessive force in violation of his Fourth Amendment rights. Officer Bristow moved for summary judgment, asserting qualified immunity. The district court determined Officer Bristow was entitled to qualified immunity and granted summary judgment in Officer Bristow’s favor. The 5th affirmed.
Analysis
Carico asserts that (1) Officer Bristow’s use of force was excessive and unreasonable because Carico did not pose an immediate threat, and (2) it was clearly established that Officer Bristow could not shoot him if he did not pose an immediate threat. Carico argues he did not pose an immediate threat for three reasons: (1) Officer Bristow knew that Carico did not threaten to harm anyone except himself; (2) Carico was actively deescalating the situation by putting the rifle down; and (3) there is no evidence that Carico intended to harm anyone other than himself.
Two cases are central to Carico’s arguments: Roque and Cole. In Roque, we considered the fatal shooting of a suicidal man. There, a man repeatedly yelled at officers to shoot him as he held what was later determined to be a BB gun to his head. He was told to drop the gun once, but video evidence showed he instead turned to face the officers. The man was then shot once, and a video showed the gun falling to the ground. Two seconds later, the officer attempted to shoot him again but missed. Two seconds after that, he was fatally shot. The officer claimed he took each shot because he believed the man was a danger to the life and safety of a bystander. On appeal, this court considered only the second and third shot. The district court found factual disputes related to the final two shots; we concluded those factual disputes were material and, therefore, precluded summary judgment. Importantly, we determined the factual disputes as to whether the man was still armed and still moving were relevant to whether a reasonable officer would have known that the man was incapacitated after the first shot. Consistent with our precedent, we acknowledged the man would no longer be a threat if he was incapacitated, and if he no longer posed a threat, the officer’s second and third shots were excessive and unreasonable.
Carico argues that, as in Roque, video evidence shows he had taken one hand off the rifle, such that he only held the rifle’s barrel in a position where he could not have fired, to set it down while he moved away from everyone at the scene. Carico argues that he therefore posed far less threat than the man in Roque, as there was never a moment when Carico waved his gun at anyone other than himself. Carico omits two vital differences from his analysis. First, the man in Roque had been shot once already and was possibly incapacitated by the time he was fatally shot. Second, video evidence here shows, and Carico concedes, that he was still holding the firearm in one hand when he was shot.
Cole also involved a suicidal man. There, the district court found genuine disputes of material fact that could allow a reasonable jury to conclude that the man did not pose a threat to the officers so as to justify shooting him without a warning. Before he was shot, the man backed out from the tree line in front of the officers, unaware of the officers’ presence. The officers did not warn him or give him an opportunity to disarm himself. The officers who shot him knew he had already encountered fellow officers and walked away from them with his gun to his head, non-responsive, but without aggressive action. Factual disputes existed regarding what the officers knew before the shooting, whether they warned the man before shooting him, and what actions the man took before the shooting.
This case does not present the same factual concerns. Here, it is undisputed that Carico knew the officers were there, the officers shouted warnings to Carico, and Carico turned his back and began moving into his home, out of the officers’ sight, after the warnings.
Carico cites another of our precedents for the proposition that it is excessive force to shoot someone who is turned away. See Poole. In Poole, an officer shot an unarmed man entering his truck after a low-speed chase. The district court found factual disputes as to whether the officer warned the man before shooting him, the man was turned away during the shooting, and the officer could see the man’s hands were empty. The district court determined that a jury could find the officer shot the man in the back, without warning and knowing his hands were empty and denied qualified immunity. We affirmed the district court’s holding, emphasizing the manifest unreasonableness of shooting an individual the officer can see is unarmed and not aggressive.
Carico correctly cites Poole for the proposition that it is unreasonable for an officer to seize an unarmed, nondangerous suspect by shooting him dead, and a suspect is less of a threat when he is turning or moving away from the officer. Nevertheless, the presence, or even suspected presence, of a firearm changes the analysis. In fact, whether the suspect is armed is often the key factor in determining if a threat to the officer justifies the use of deadly force. Even if there is no weapon, binding caselaw demonstrates that what matters is whether the officer could reasonably believe that the man was reaching for or had a gun. See Winder.
Although Carico was turned away from the officers, the rifle was still in Carico’s left hand, and Carico was attempting to move back into the residence, where he would be out of sight of the officers. Officer Bristow stated in an affidavit that he could hear Carico talking to someone inside the residence and it almost sounded like he was throwing things inside of the residence before he exited with the rifle. The officers had not cleared the interior of the residence and they did not know if there was another person inside the residence who may be shot by Carico. Furthermore, Officer Bristow knew the exterior walls of Carico’s metal residence could easily be penetrated by a rifle round and the officers’ police vests could not withstand a bullet from a high powered caliber rifle. Regardless of whether Carico was truly moving inside to place his firearm down, a reasonable officer on the scene could have understood Carico’s actions as an attempt to remain armed and take cover, making him a threat to the officers, Reger, and any other potential bystanders inside the house, even as his back was turned to the officers.
Considering the totality of the circumstances — including Carico’s intoxicated appearance, his unwillingness to cooperate, his sudden appearance with a rifle, and his actions of turning away and moving into the residence while still holding the rifle after being told to drop the weapon — a reasonable officer on the scene could have perceived Carico as an immediate threat to any unknown persons inside the home, his girlfriend standing next to him, or the officers. Therefore, it was not “clearly excessive” or “unreasonable” for Officer Bristow to use deadly force. We agree with the district court’s conclusion that Carico’s constitutional rights were not violated.
https://www.ca5.uscourts.gov/opinions/unpub/24/24-40239.0.pdf