Facts
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Darion Baker and his friend Gregory Dees ran out of money while on vacation in Los Angeles. Without the funds required to return home to Memphis, Tennessee, the men decided to steal an unoccupied Infiniti sedan outside of a Walgreens. Shortly after doing so, the duo headed home.
Baker and Dees approached the town of Stratford, Texas, around 7:00 p.m. on February 21, 2018. At the same time, officers Richard Coborn and Michael McHugh were in their patrol SUV, watching the traffic. The officers then observed the sedan press hard on its brakes. Perceiving this action to be suspicious, the officers followed the men to a gas station.
After Baker and Dees entered the convenience store, the officers relayed the license plate to dispatch who advised that the sedan was stolen. When Officer Coburn entered the convenience store, three young men approached him and stated that Baker and Dees were asking suspicious questions about how to get to Memphis through backroads in order to evade police checkpoints. Baker, Dees, and Coborn then exited the convenience store together (with Coborn holding the door open for them).
Baker got into the driver’s side while Dees began to pump gas; at the same time, Coborn climbed back into the SUV. The officers then drove directly behind the sedan and activated their police lights. Coborn and McHugh exited their SUV and approached the sedan with their guns drawn. Coborn ran to the driver side door; McHugh positioned himself on the passenger side of the sedan. Upon seeing the officers, Dees dropped the gas pump and climbed into the front passenger seat.
The footage then shows the officers shouting commands at Baker and Dees, including “let me see your hands” and “roll the window down!” The sedan’s side windows were darkly tinted, obstructing the officers’ view inside. To get a better look, Coborn began striking the driver-side window with his firearm. Unable to break the window, Coborn moved directly in front of the sedan.
The videos then show the sedan’s brake lights turn on, but the car remains stationary. At this moment, McHugh can be heard yelling, “you go forward . . . ,” but was interrupted by Coborn discharging his firearm into the windshield (first round). There is a disagreement between the parties regarding whether Coborn initiated firing his weapon before or after the sedan started moving. They also disagree about what led up to and what actually took place during the shooting. According to the defendants, Baker dipped down below the dashboard at the same time Coborn began firing his weapon.
They also contend that Baker revved the engine as Coborn stood in front of the sedan. They stress that they feared Baker was going to either shoot or run over Coborn. Plaintiffs’ account differs. They claim that Baker ducked because Coborn began discharging his firearm to get out of the line of fire.
What happened next is also disputed. Shortly after the initial shots rang out, Baker turned the wheels hard away from Coborn and began to accelerate toward the left. The plaintiffs argue that the sedan moved away from Coborn in an effort to avoid him. The officers claim the sedan moved straight ahead toward Coborn before moving left. The sedan then moved past Coborn, who continued to fire. McHugh discharged his firearm moments later (second round). According to McHugh, he delayed firing for two reasons: (1) to avoid shooting Dees in the passenger seat, and (2) to avoid shooting through the front passenger side window.
Baker was hit from behind by two gunshots and died at the scene. Dees was not injured. The Texas Ranger’s investigation was unable to reveal whether it was officer Coborn’s gun or officer McHugh’s gun that fired the fatal bullet.
Baker’s family sued Coborn and McHugh under 42 U.S.C. § 1983, alleging the shooting constituted excessive force in violation of the Fourth Amendments. The District Court granted summary judgement to the officers. The 5th reversed based on the second round of shots.
The footage from the dashcam, McHugh’s body camera, and the Pilot video can be viewed at the following links:
Analysis
A. First round of shots by Officer Coburn (standing in front of vehicle)
The district court found that there are genuine disputes of material fact as to whether Coborn violated Baker’s constitutional rights but held that the plaintiffs did not identify an analogous case from the Supreme Court or Fifth Circuit clearly establishing that Coborn’s actions violated clearly established law. Thus, our focus on appeal is whether those rights were clearly established.
Plaintiffs argue that clearly established law prohibited Coborn’s initial shots because Fifth Circuit caselaw has long held that the “police cannot shoot a driver in a stationary car when the driver has not otherwise made suspicious movements.” To support this proposition, plaintiffs point to Edmond v. City of New Orleans, 20 F.3d 1170 (5th Cir. 1994), Ougel, and Baker. (In all of these cited cases, summary judgement was denied)
In Edmond, plainclothes police officers driving an unmarked police car cut off a vehicle driven by the plaintiffs. Past victims of a robbery, the plaintiffs believed that they were about to be robbed and attempted to drive away. Without identifying themselves, the officers shot at the plaintiffs, claiming that the driver drove directly at one of the officers and struck an officer. Unlike in Edmond, Coborn’s clothing and the flashing lights from the police SUV plainly identified him as law enforcement. Further, the video evidence shows that Coborn stepped in front of the sedan before it began to move.
In Ougel, a suspect stole a car from a Porsche dealership and led law enforcement officials on a high-speed chase. Eventually, several officers surrounded and stopped the vehicle. Police ultimately shot and killed the suspect after one of the officers broke the car window and began trying to remove him. We denied qualified immunity because firing a shot at an unarmed suspect whose left arm was restrained by a wrist lock and whose right arm was in the air would constitute an objectively unreasonable exercise of excessive force. Unlike in Ougel, Baker was not partially restrained by an officer. Moreover, in Ougel, there was no concern about the car itself being used as a weapon. Thus, this case is unhelpful.
In Baker, officers found and shot a suspect sitting inside a vehicle after gunfire caused panic and confusion on a crowded beach. We held that it violated the Fourth Amendment to shoot someone who took no threatening action, was not holding a gun, was not warned and may have barely had an opportunity to see the officer before the officer fired his gun. This case is clearly distinguishable from ours. Baker was clearly aware of Coborn as he stood directly in front of the car. Further, Baker ignored multiple commands from the officers, and there was no concern in Putnal about the car being used as a weapon.
In sum, plaintiffs have not pointed to sufficient authority clearly establishing that Coborn’s conduct violated the law under the specific circumstances he was facing, and thus he is entitled to qualified immunity.
B. Second round of shots by both officers (sedan moving away)
To prevail on an excessive-force claim, a plaintiff must prove he suffered (1) an injury (2) resulting directly and only from (3) an officer’s use of objectively unreasonable force. This determination requires us to balance the individual’s interest against the government’s, weighing the Graham factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
Considering the first and third Graham factors, Baker was suspected of committing car theft. When discovered by the officers, he actively resisted by refusing to comply with officers’ commands and attempted to evade arrest by flight. These factors weigh in favor of the use of significant force. However, the second factor—whether there is an immediate threat to safety—is generally the most important reasonableness of an officer’s use of deadly force.
In granting summary judgment, the district court reasoned that the officers were entitled to qualified immunity because once the officers perceived the car safely passed Officer Coborn, they ceased firing and began to pursue Baker on foot. We disagree.
At the outset, the district court erroneously failed to consider the facts in the light most favorable to Baker. In this case, there is evidence to support plaintiffs’ claim that Baker was hit by shots after the car safely passed the officers. First, Baker was shot twice in the back. Video, photo, and testimonial evidence in the record also support the plaintiffs’ claim that Baker was shot from the rear while he sat facing forward.
The officers argue that summary judgment should be affirmed because Coborn and McHugh’s actions were objectively reasonable. However, several factual disputes preclude this determination.
According to the officers’ version of events, Coborn began shooting because Baker was reaching under the dash for what Coborn feared was a gun. The officers further claim that Baker revved his engine as Coborn stood in front of the sedan. Plaintiffs, however, have produced evidence, through Dees, that Baker ducked only to avoid the shots fired by Coborn. Plaintiffs further argue that the contention that Baker revved the engine is contradicted by the audio track on McHugh’s body camera.
Dees’ account brings into question whether any force was justified in the first instance. The videos show that Coborn began firing before the car began to move. If Baker ducked down to avoid being shot instead of reaching for a gun as Coborn feared, it does not appear that the use of deadly force, or the continued use of it as the car drove away, would have been required. Coborn concedes that deadly force was not necessary before the car moved, because there was no threat of immediate bodily harm or injury.
The officers further argue that Baker posed an immediate threat, alleging that Baker drove toward Coborn, missed, and then fled toward a public highway. However, it is not clear that a reasonable officer would have perceived such a danger. Plaintiffs posit through video evidence that the sedan never moved toward Coborn because the wheels were turned sharply to the left as the sedan moved slowly away from the pumps. They further argue that the video evidence shows that the fatal shot was fired from behind after Baker safely drove past both officers. And there were no other bystanders in the sedan’s path.
The officers respond by arguing that, even if Baker had safely passed them and was no longer an immediate threat, they were permitted to continue shooting at the car until it was disabled. Not so. Although our precedent gives an officer’s decision to shoot an unarmed suspect in a speeding car considerable latitude, the officer must have cause to believe that the car poses an immediate threat.
Here, there are significant factual disputes about the manner in which the incident took place. If the facts are as the officers alleged them—that Baker drove straight at Coborn and missed, deadly force may well be reasonable. However, at the summary stage, the court must draw all inferences in favor of plaintiffs’ version of facts.
The facts here—viewed in the light most favorable to plaintiffs—show that Baker attempted to drive away from Coborn, and when Baker safely did so, Coborn and McHugh continued to fire in an attempt to capture Dees and Baker. Given these facts, a reasonable factfinder could determine that the officers acted unreasonably when they fired the second round of shots. Consequently, we are not convinced that the degree of force used was objectively reasonable.
https://www.ca5.uscourts.gov/opinions/pub/21/21-10303-CV0.pdf