11th Circuit Holds Warning Not Always Required Before Using Deadly Force
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Where an officer could have believed a man raising a pistol in the officer’s direction was about to shoot, the officer was not required to give the man verbal warning before responding with deadly force, the Eleventh Circuit recently held.
In June 2016, Officer Patrick Snook arrived at the wrong house “because of imprecise dispatch directions,” where he shot and killed William David Powell, who had not committed any crime and was standing in his driveway. The officer killed Powell without any verbal warning because Powell – who walked onto his driveway with a pistol because he thought he heard a prowler – started to raise a gun in the officer’s direction.
Office Snook and two other officers responded to a dispatch call in Henry County, GA, prompted by a 911 call just before midnight, reporting a woman’s screams and three gunshots. The caller gave information about the where the noises were coming from relative to her home, which the operator wrote down in her report more generally. Minutes later at midnight, the operator ended her shift.
As the uniformed officers approached Powell’s house, they confirmed the suspected address with dispatch. At the address confirmed by dispatch, the officers cautiously walked down a long driveway toward a darkened house. Officer Snook positioned himself and his rifle in the unlit driveway area, while another officer went to the back of the house. According to Powell’s wife, she didn’t hear any knocks on the door or rings of her doorbell, but her barking dogs woke her and her husband.
Powell went to a window and told his wife he saw someone outside. He then went to his closet, put on his pants, and got his pistol. He then went to the garage and opened the automated garage door, which turned on the garage light. When the door had fully opened, Powell walked out onto the driveway holding his loaded pistol. He then stopped and turned to face the walkway leading up to his front door, which is where Officer Snook was positioned in the dark.
Powell’s wife followed him onto the driveway. She heard no noise or voice, but did get the sense that her husband was looking at someone. Powell started to raise his arm, getting the pistol “hip-high.” At that same time, Officer Snook went down on one knee and rapidly fired three shots at Powell, who dropped to the ground and later died.
Powell’s estate subsequently filed a Section 1983 claim against Officer Snook for using excessive force in violation of Powell’s Fourth Amendment rights. Snook filed a motion for summary judgment, claiming he was entitled to qualified immunity on the claim.
The U.S. District Court for the Norther District of Georgia agreed with Snook and granted his motion. Powell’s estate then appealed that decision to the U.S. Court of Appeals for the Eleventh Circuit.
On appeal, Powell’s estate argued that Powell had a constitutional right to a warning before Officer Snook used deadly force against him and that any reasonable officer in Snook’s position would have known as much. The Eleventh Circuit disagreed.
The Court of Appeals said it was bound to view the facts “from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts” and to “balance the risk of bodily harm to [Powell] against the gravity of the threat the officer sought to eliminate.” The Court also held that U.S. Supreme Court precedent only required officers to warn a suspect before using deadline force “where it’s feasible to do so.”
Through the lens of precedent, the Eleventh Circuit characterized the scene as one in which Officer Snook responded to a 911 report of domestic violence involving multiple gunshots. The officers were approached by a man holding a pistol – who only raised the pistol when he stopped walking and faced Snook. On those facts, the court held there was no established requirement for the officer to warn Powell before he raised his gun, and that “giving a warning in the one second between [Powell] raising his gun and Snook firing wasn’t feasible.”
While Officer Snook’s decision “may have been a mistake,” the Eleventh Circuit wrote that it could not view his actions “with the 20/20 vision of hindsight” and that qualified immunity leaves “room for mistaken judgments.”
The Court of Appeals therefore held that Powell’s estate failed to meet its burden of showing that qualified immunity was inappropriate, and it affirmed the district court’s judgment in Officer Snook’s favor.
Read the Eleventh Circuit’s full opinion in Powell v. Snook.
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