Mark Tyson
Member
Court backs off-duty officer's use of deadly force
Copyright 2003 Law Bulletin Publishing Company
Chicago Daily Law Bulletin
October 16, 2003, Thursday
Police officer was justified in shooting fleeing car thief where suspect's driving posed risk to several bystanders.
Today's column reviews a new decision by the 7th U.S. Circuit Court of Appeals that upheld an off-duty police officer's use of deadly force against a man who was attempting to steal the officer's personal vehicle. Scott, et al. v. Edinburg, et al., No. 02-4085 (7th Cir., Oct. 9).
At approximately 11 p.m. on May 17, 1999, Rodney L. Edinburg, an off-duty Village of Glenwood police officer drove his red convertible Ford Mustang into a Marathon gas station on the South Side of Chicago and parked the car with the top down. Edinburg left the keys in the ignition and approached an adjacent hotdog stand.
While ordering a hotdog, Edinburg discovered that someone had jumped into his car and was attempting to steal it. Edinburg ran toward the car yelling, "Stop, stop!" and "That's my car!" The reverse lights came on, and the car backed toward Edinburg who was forced to run backward to avoid being hit.
The alleged thief, Phillip Scott, looked over his shoulder at Edinburg as the vehicle backed up, at which time Edinburg yelled, "Stop, police!" and drew his revolver. Within a few seconds, the car stopped backing up and began to drive forward as Scott attempted to escape with the vehicle.
At just about the time the car stopped and began to move forward, Edinburg shot at Scott. But, with tires skidding, the car sped off.
Edinburg claimed that as Scott drove through the parking lot at a high rate of speed, Edinburg saw two people in the direct path of the car and others ducking for cover.
According to at least two bystanders, however, no one was in the car's path, and no one was forced to move out of the way.
It was undisputed though that between 12 and 14 people were in the gas station parking lot throughout the incident.
While the car was still in the lot, Edinburg fired a second shot. As the vehicle exited the parking lot, proceeding north on State Street, Edinburg followed on foot and fired at least six more shots at the fleeing car thief.
Shortly thereafter, Scott died of a gunshot wound, and the car crashed. Though it is unclear which gunshot killed Scott, it was undisputed that the fatal shot was fired while Scott was still on the gas station property.
Several of Scott's family members filed a federal civil rights lawsuit against Edinburg and the Village of Glenwood, contending that the use of deadly force against Phillip was excessive and in violation of his Fourth Amendment right to be free from unreasonable seizure.
Following discovery, U.S. District Judge John A. Nordberg granted summary judgment in favor of the defendants, concluding that the use of force was justified because of Edinburg's fear for his own life and that of the dozen or so bystanders at the gas station. The plaintiffs appealed.
The 7th Circuit affirmed, although it took issue with a portion of the District Court's reasoning. Writing for the appeals court, Judge Kenneth F. Ripple began by reviewing the legal principles governing the use of deadly force:
"A police officer's use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable...
"In Tennessee v. Garner 471 U.S. 1, 7, the Supreme Court outlined the principles for evaluating whether the use of deadly force is reasonable under the Fourth Amendment: 'Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.' "
The appeals court explained that the Fourth Amendment inquiry had to take into account the practical realities of a rapidly evolving crisis:
"The 'particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight....' 'The question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation....' Moreover, the reasonableness calculation 'must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain and rapidly evolving -- about the amount of force that is necessary in a particular situation....'
"Consequently, 'when an officer believes that a suspect's actions place him, his partner or those in the immediate vicinity in imminent danger of death or serious bodily injury, the officer can reasonably exercise the use of deadly force.' "
In light of those principles, the 7th Circuit addressed Edinburg's contention that his use of deadly force was justified under Garner because of his belief that Scott was trying to run him over. The appeals court disagreed with Nordberg's conclusion that Edinburg had presented sufficient evidence to warrant summary judgment in his favor:
"In Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993), we noted that, even 'when an officer faces a situation in which he could justifiably shoot, he does not retain the right to shoot at any time thereafter with impunity....' Thus, the timing of Officer Edinburg's first shot is critical. It is undisputed that every shot after the first one was fired while the car was moving away from Officer Edinburg ... but the timing of the first shot is unclear...
"The plaintiffs agreed with the defendants that 'at the point where the vehicle stopped moving toward defendant Edinburg and began moving away from Edinburg, he fired his weapon at Scott.'
"However, in his deposition testimony, Officer Edinburg initially stated that the car was in the process of backing up and stopping when he fired the first shot... Four pages later, the following exchange occurred: 'Q: At the time you fired the first shot, was the vehicle backing up, standing still or moving away from you? A: Moving away from me.' The discrepancy in Officer Edinburg's testimony is significant.
"If the fatal shot was fired while Mr. Scott was driving away, then the argument that Officer Edinburg was compelled to fire in order to protect himself would be significantly weakened. Accordingly, there is a genuine issue of material fact as to the timing of the first shot, which precludes a grant of summary judgment based on Garner's justification for self-defense."
Notwithstanding its conclusion that Edinburg was not entitled to summary judgment on the claim that he fired in self-defense, the appeals court affirmed based on evidence that Edinburg was attempting to protect bystanders:
"Mr. Scott's attempt to run over Officer Edinburg is relevant in considering the reasonableness of Officer Edinburg's perception that the bystanders were in danger.
"In Ellis, we explained, 'If Ellis had threatened the officer with a weapon and then run off with the weapon, a reasonable officer ... could believe that Ellis created a danger to the community.' Officer Edinburg knew that Mr. Scott already had committed a forcible felony and had attempted to run him down in order to escape or at least had acted recklessly with respect to that possibility... Moreover, Officer Edinburg knew that Mr. Scott was escaping at a high rate of speed through a parking lot with 12 to 14 bystanders and demonstrating little concern for anyone's safety. These facts support Officer Edinburg's argument that the use of deadly force was permissible to protect third parties in danger."
The court rejected the plaintiffs' contention that the affidavits of bystanders to the effect that no one in the parking lot was in the direct path of the Mustang warranted a jury trial:
"The affidavits clearly create a disputed fact as to whether people were in the direct path of the car and whether they were forced to run and duck out of its way. Nevertheless, this conflict does not preclude summary judgment because the threatened individuals need not have been placed in the direct path of the threat. Deadly force may be exercised if the suspect's actions place the officer, 'his partner, or those in the immediate vicinity in imminent danger of death or serious bodily injury....'
"Moreover, as we have noted, at the time Officer Edinburg fired the fatal shots, there were between twelve and fourteen patrons in the gas station parking lot, Mr. Scott had committed a forcible felony by stealing Officer Edinburg's car, and Mr. Scott had placed Officer Edinburg in danger. The affidavits do not dispute these facts; therefore, they do not reject the basis for our conclusion that it was objectively reasonable for Officer Edinburg to perceive that the bystanders in the Marathon gas station parking lot were at risk of injury from Mr. Scott." Civil Rights By James G. Sotos Sotos is a partner of the law firm of Hervas, Sotos, Condon & Bersani P.C. in Itasca, concentrating in government representation. Sotos represents Illinois municipalities and governmental officials in federal and state litigation at the trial and appellate levels. He is a 1985 graduate of The John Marshall Law School.
Copyright 2003 Law Bulletin Publishing Company
Chicago Daily Law Bulletin
October 16, 2003, Thursday
Police officer was justified in shooting fleeing car thief where suspect's driving posed risk to several bystanders.
Today's column reviews a new decision by the 7th U.S. Circuit Court of Appeals that upheld an off-duty police officer's use of deadly force against a man who was attempting to steal the officer's personal vehicle. Scott, et al. v. Edinburg, et al., No. 02-4085 (7th Cir., Oct. 9).
At approximately 11 p.m. on May 17, 1999, Rodney L. Edinburg, an off-duty Village of Glenwood police officer drove his red convertible Ford Mustang into a Marathon gas station on the South Side of Chicago and parked the car with the top down. Edinburg left the keys in the ignition and approached an adjacent hotdog stand.
While ordering a hotdog, Edinburg discovered that someone had jumped into his car and was attempting to steal it. Edinburg ran toward the car yelling, "Stop, stop!" and "That's my car!" The reverse lights came on, and the car backed toward Edinburg who was forced to run backward to avoid being hit.
The alleged thief, Phillip Scott, looked over his shoulder at Edinburg as the vehicle backed up, at which time Edinburg yelled, "Stop, police!" and drew his revolver. Within a few seconds, the car stopped backing up and began to drive forward as Scott attempted to escape with the vehicle.
At just about the time the car stopped and began to move forward, Edinburg shot at Scott. But, with tires skidding, the car sped off.
Edinburg claimed that as Scott drove through the parking lot at a high rate of speed, Edinburg saw two people in the direct path of the car and others ducking for cover.
According to at least two bystanders, however, no one was in the car's path, and no one was forced to move out of the way.
It was undisputed though that between 12 and 14 people were in the gas station parking lot throughout the incident.
While the car was still in the lot, Edinburg fired a second shot. As the vehicle exited the parking lot, proceeding north on State Street, Edinburg followed on foot and fired at least six more shots at the fleeing car thief.
Shortly thereafter, Scott died of a gunshot wound, and the car crashed. Though it is unclear which gunshot killed Scott, it was undisputed that the fatal shot was fired while Scott was still on the gas station property.
Several of Scott's family members filed a federal civil rights lawsuit against Edinburg and the Village of Glenwood, contending that the use of deadly force against Phillip was excessive and in violation of his Fourth Amendment right to be free from unreasonable seizure.
Following discovery, U.S. District Judge John A. Nordberg granted summary judgment in favor of the defendants, concluding that the use of force was justified because of Edinburg's fear for his own life and that of the dozen or so bystanders at the gas station. The plaintiffs appealed.
The 7th Circuit affirmed, although it took issue with a portion of the District Court's reasoning. Writing for the appeals court, Judge Kenneth F. Ripple began by reviewing the legal principles governing the use of deadly force:
"A police officer's use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable...
"In Tennessee v. Garner 471 U.S. 1, 7, the Supreme Court outlined the principles for evaluating whether the use of deadly force is reasonable under the Fourth Amendment: 'Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.' "
The appeals court explained that the Fourth Amendment inquiry had to take into account the practical realities of a rapidly evolving crisis:
"The 'particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight....' 'The question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation....' Moreover, the reasonableness calculation 'must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain and rapidly evolving -- about the amount of force that is necessary in a particular situation....'
"Consequently, 'when an officer believes that a suspect's actions place him, his partner or those in the immediate vicinity in imminent danger of death or serious bodily injury, the officer can reasonably exercise the use of deadly force.' "
In light of those principles, the 7th Circuit addressed Edinburg's contention that his use of deadly force was justified under Garner because of his belief that Scott was trying to run him over. The appeals court disagreed with Nordberg's conclusion that Edinburg had presented sufficient evidence to warrant summary judgment in his favor:
"In Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993), we noted that, even 'when an officer faces a situation in which he could justifiably shoot, he does not retain the right to shoot at any time thereafter with impunity....' Thus, the timing of Officer Edinburg's first shot is critical. It is undisputed that every shot after the first one was fired while the car was moving away from Officer Edinburg ... but the timing of the first shot is unclear...
"The plaintiffs agreed with the defendants that 'at the point where the vehicle stopped moving toward defendant Edinburg and began moving away from Edinburg, he fired his weapon at Scott.'
"However, in his deposition testimony, Officer Edinburg initially stated that the car was in the process of backing up and stopping when he fired the first shot... Four pages later, the following exchange occurred: 'Q: At the time you fired the first shot, was the vehicle backing up, standing still or moving away from you? A: Moving away from me.' The discrepancy in Officer Edinburg's testimony is significant.
"If the fatal shot was fired while Mr. Scott was driving away, then the argument that Officer Edinburg was compelled to fire in order to protect himself would be significantly weakened. Accordingly, there is a genuine issue of material fact as to the timing of the first shot, which precludes a grant of summary judgment based on Garner's justification for self-defense."
Notwithstanding its conclusion that Edinburg was not entitled to summary judgment on the claim that he fired in self-defense, the appeals court affirmed based on evidence that Edinburg was attempting to protect bystanders:
"Mr. Scott's attempt to run over Officer Edinburg is relevant in considering the reasonableness of Officer Edinburg's perception that the bystanders were in danger.
"In Ellis, we explained, 'If Ellis had threatened the officer with a weapon and then run off with the weapon, a reasonable officer ... could believe that Ellis created a danger to the community.' Officer Edinburg knew that Mr. Scott already had committed a forcible felony and had attempted to run him down in order to escape or at least had acted recklessly with respect to that possibility... Moreover, Officer Edinburg knew that Mr. Scott was escaping at a high rate of speed through a parking lot with 12 to 14 bystanders and demonstrating little concern for anyone's safety. These facts support Officer Edinburg's argument that the use of deadly force was permissible to protect third parties in danger."
The court rejected the plaintiffs' contention that the affidavits of bystanders to the effect that no one in the parking lot was in the direct path of the Mustang warranted a jury trial:
"The affidavits clearly create a disputed fact as to whether people were in the direct path of the car and whether they were forced to run and duck out of its way. Nevertheless, this conflict does not preclude summary judgment because the threatened individuals need not have been placed in the direct path of the threat. Deadly force may be exercised if the suspect's actions place the officer, 'his partner, or those in the immediate vicinity in imminent danger of death or serious bodily injury....'
"Moreover, as we have noted, at the time Officer Edinburg fired the fatal shots, there were between twelve and fourteen patrons in the gas station parking lot, Mr. Scott had committed a forcible felony by stealing Officer Edinburg's car, and Mr. Scott had placed Officer Edinburg in danger. The affidavits do not dispute these facts; therefore, they do not reject the basis for our conclusion that it was objectively reasonable for Officer Edinburg to perceive that the bystanders in the Marathon gas station parking lot were at risk of injury from Mr. Scott." Civil Rights By James G. Sotos Sotos is a partner of the law firm of Hervas, Sotos, Condon & Bersani P.C. in Itasca, concentrating in government representation. Sotos represents Illinois municipalities and governmental officials in federal and state litigation at the trial and appellate levels. He is a 1985 graduate of The John Marshall Law School.
Warning!!! You are about to see a RANT. What ever happened to personal responsibility, that people have to decide who is guilty when a person commits a crime? 
