Facts
In 2019, Bastrop P.D. received two reports of an armed confrontation at an apartment complex. One report identified the perpetrator as Thomas Johnson who was driving a red truck with rims. Officer Joshua Green encountered a stationary red truck matching the description with flashing hazards and initiated a stop.
As Green exited his vehicle, Johnson stepped out of the truck’s passenger side holding a semiautomatic pistol with an extended magazine. Green ordered Johnson to shut the door, but Johnson ignored him and ran toward a closed school, sparking an armed chase that would span approximately two minutes.
When Johnson did not drop the gun as instructed and continued to run, Green fired at him. Green then chased Johnson into an adjacent open field away from the road and recalled seeing Johnson looking over his shoulder at him and the barrel of the gun pointing back in his direction. He continued to chase Johnson across the field, ordering him to drop the gun and instructing onlookers to lie on the ground.
Officer John McKinney responded to Green’s radio call and saw Johnson approaching his squad car, outrunning Green. Johnson saw McKinney and changed direction toward the tree line bordering a neighborhood. McKinney ordered Johnson to stop and drop the gun. When he did not, McKinney fired from his squad car at Johnson, who stumbled, looked at McKinney, picked up his gun, and continued to flee.
McKinney stepped out of his squad car and fired three more shots. Both officers gave chase and repeatedly ordered Johnson to stop and drop the gun as he approached the tree line. When in range, both officers shot, and Johnson fell and dropped his gun. Johnson died on the scene from the gunshot wounds.
Johnson’s mother and brothers filed a §1983 alleging excessive force. The trial judge granted summary judgement to Green and McKinney. Plaintiffs appealed and the 5th affirmed. (Dash cam videos available in opinion on bottom of page two)
Analysis
An officer merits qualified immunity unless (1) he violated a statutory or constitutional right of the plaintiff and (2) the right was clearly established at the time of the violation. Plaintiffs claim that Green and McKinney used unconstitutionally excessive force when they shot and killed Johnson. We agree with the trial judge that there was no constitutional violation. (The 5th chose not to discuss clearly established prong since it was moot)
An officer violates the Fourth Amendment when an arrestee suffers an injury that results directly and only from a clearly excessive and objectively unreasonable use of force. When an officer uses deadly force, its reasonableness turns primarily on whether the officer had probable cause to believe that the suspect posed a threat of serious physical harm, either to the officer or to others.
Given the difficulty of split second judgments, the court judges the reasonableness of an officer’s use of force from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, and avoids second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.
Officer Green
Green could have reasonably believed Johnson posed a serious physical threat to bystanders and to Green himself. Just before the stop, Green had reason to think Johnson was brandishing a firearm at an apartment complex. He was the lone officer to respond to the call.
Instead of obeying Green’s orders, Johnson ran toward a closed school which still had students nearby as evidenced by a school bus passing Green’s squad car after the stop. Johnson was armed with the gun and then refused to heed Green’s command to drop the firearm. Only then did Green fire.
As Green chased Johnson, he repeatedly ordered Johnson to stop and drop the gun. Yet Johnson disobeyed and ran directly toward another officer before disappearing from sight. Green heard gunshots and reloaded. Johnson emerged from behind brush, tripped, picked up his gun, and continued to ignore Green and run toward a neighborhood. Green saw more onlookers nearby and again shot, this time killing Johnson.
Plaintiffs’ contrary arguments lack merit. First, they maintain Tennessee v. Garner requires reversal. In Garner, a police officer shot a fleeing, unarmed suspect in the back of the head and later admitted he did not believe the suspect was armed. The facts are not the same.
Second, Plaintiffs argue that when Green stopped the vehicle, any threat to others (especially those at Eden Apartments) had vanished, so deadly force became unreasonable at that point. True, an exercise of force that is reasonable at one moment can become unreasonable in the next if the justification for the use of force has ceased. But the inverse is also true. Force unreasonable in one moment may become reasonable in the next. So here. When Johnson ran, armed and disobeying Green’s commands to drop the gun despite the presence of onlookers, Green’s use of deadly force became justified.
Third, Plaintiffs contend that Green is not credible because he testified that he saw Johnson point a gun at him while inside the truck even though he never stated that during the police’s internal investigation. Even assuming Johnson did not point a gun at Green’s squad car, the undisputed facts still justified the exercise of lethal force.
Fourth, Plaintiffs argue that Johnson never fired his weapon, so he did not pose a threat. In Salazar-Limon, we said that we have never required officers to wait until a defendant turns towards them, with weapon in hand, before applying deadly force to ensure their safety. By the same token, officers need not wait until a fleeing suspect turns his weapon toward bystanders before using deadly force to protect them.
Finally, Plaintiffs point out that Louisiana law allows open carry of firearms. That is beside the point. Louisiana’s open carry law does not permit armed suspects to flee from officers and disobey lawful commands to relinquish their guns.
B. Officer McKinney
Like Green, McKinney could have reasonably believed that Johnson threatened him and others with serious physical harm. McKinney heard distant gunshots and a “shots fired!” call over his radio, leaving him unsure whether the officer or the suspect had fired. When he arrived at the scene, Johnson was running at him holding a gun but changed direction toward a tree line bordering a neighborhood.
Johnson repeatedly ignored McKinney’s orders to stop and drop the gun. Even after McKinney fired at Johnson, he kept his gun and continued to flee. And during the chase, McKinney spotted Green nearby. McKinney again used lethal force, this time killing Johnson.
As to McKinney specifically, Plaintiffs argue he never faced any threat because he mistakenly believed Johnson had shot Green based only on the shots fired radio call. But even assuming McKinney’s belief was mistaken, it can still be a reasonable belief. And nothing in the record shows McKinney was unreasonable in thinking Johnson had fired his weapon.
Moreover, aside from this question, the circumstances still justified the exercise of lethal force, as McKinney could have reasonably believed that the fleeing Johnson, who persistently held onto his gun against the officers’ orders, presented a threat to his safety, Green’s safety, and the safety of onlookers in the Eden neighborhood.
In sum, both Green and McKinney reasonably believed that Johnson—(1) suspected of an armed confrontation, (2) fleeing as police attempted to detain him, (3) running towards one of the officers in the presence of bystanders, (4) armed with a semiautomatic pistol, and (5) refusing to obey audible police commands to drop his weapon—posed a threat of serious physical harm to themselves and bystanders. We therefore agree with the district court that the lethal force each officer deployed was not constitutionally excessive.
https://www.ca5.uscourts.gov/opinions/pub/21/21-30204-CV0.pdf