A Suspect’s Mere Possession of a Firearm Does Not Permit an Officer’s Use of Deadly Force
In October 2016, Little Rock, AR Police Officer Dennis Hutchins shot and killed Roy Lee Richards, Jr. The U.S. Court of Appeals for the Eighth Circuit recently found that Officer Hutchins’s shooting of Richards, who possessed a pellet gun, was unreasonable under the Fourth Amendment, and denied Officer Hutchins qualified immunity.
On October 24, 2016, Richards was intoxicated and went to the home of his uncle, Darrell Underwood. The two got into an altercation and Underwood asked Richards to leave. Richards left, but returned later that night. The two got into another altercation. During this second altercation, Richards displayed a long gun, which turned out to be a pellet gun.
Neighbors, overhearing and witnessing the altercation, called 911 and reported a domestic disturbance. After midnight, Officer Hutchins and his partner arrived at the scene, parked up the street. The officers knew Richards possessed a long gun. A neighbor informed Richards and Underwood, who were fighting in Underwood’s front yard, that police arrived. The two then ceased their fighting approximately 10 seconds later, and Underwood walked toward his porch and Richards toward his car.
Richards retrieved the pellet gun from his car. He approached the porch, and held the pellet gun vertically, never pointing it towards Underwood. Richards walked up Underwood’s steps, and Underwood entered his home and slammed the door. Officer Hutchins then fired five shots at Richards without warning, and killed Richards.
Vanessa Cole represented Richards’s estate and sued Officer Hutchins under 42 U.S.C. § 1983, alleging he used excessive force in violation of the Fourth Amendment. Officer Hutchins moved for summary judgment based on qualified immunity. The district court denied the officer’s motion, stating the law was clearly established that an officer could not use deadly force against a person who posed no imminent threat to cause serious physical injury or death, which Richards did not.
Officer Hutchins appealed, arguing that the he did not violate Richards’s Fourth Amendment rights. Cole moved to dismiss this interlocutory appeal, contending that the court of appeals had no jurisdiction because Officer Hutchins’s defense turns on resolution of disputed facts.
The court of appeals first considered Cole’s motion to dismiss. The court stated that it does not have jurisdiction over an interlocutory appeal from the denial of qualified immunity if the heart of the argument is a dispute of fact. The court stated it had jurisdiction here since, accepting Cole’s version of facts, the question of whether the officer had qualified immunity is a matter of law.
The court of appeals next considered whether the district court erred in denying Officer Hutchins qualified immunity. To make this determination, the court was required to consider whether the evidence viewed in the light most favorable to Cole establishes a violation of a constitutional right, and the right was clearly established at the time of violation.
Per the court, an officer’s use of deadly force against a suspect is a “seizure” under the Fourth Amendment, and is subject to the Fourth Amendment’s reasonableness requirement. Excessive force, which is prohibited under the reasonableness requirement, asks “whether the amount of force used was objectively reasonable under the particular circumstances.”
The court stated that absent probable cause that a suspect poses an immediate threat of death or serious bodily injury to others, the use of deadly force is not objectively reasonable. The court then stated that “an individual’s mere possession of a firearm is not enough for an officer to have probable cause to believe that the individual poses an immediate threat of death or serious bodily injury; the suspect must also point the firearm at another individual or take similar ‘menacing action.’” The court also stated that if the threat has passed, “so too has the justification for the use of deadly force.”
Here, the court found Officer Hutchins’s use of deadly force not to be reasonable. Richards retreated down from Underwood’s stairs with his gun pointed vertically. In that moment, the court found that Officer Hutchins did not have probable cause to believe Richards posed an immediate threat of serious physical harm to Underwood. In addition, the court noted that Officer Hutchins chose to “stand silent before shooting,” despite having five to ten seconds when he saw Richards emerge from his vehicle.
The court of appeals then looked at whether the law was clearly established that Officer Hutchins’s use of deadly force against Richards was objectively unreasonable. The court found that it was, stating first that it was clearly established a person does not pose an immediate threat of serious physical harm to another when, although in possession of a gun, he does not point it at another or wield it menacingly. The court also stated it was clearly established that a few second is enough time to determine an immediate threat has passed, extinguishing preexisting justification for the use of deadly force.
The court then emphasized the limited nature of its holding, stating it did not decide in fact that Officer Hutchins violated Richards’s rights and that a factfinder may later determine the key facts were not as it assumed them to be.
The Eighth Circuit affirmed the district court’s decision.
Read the full case: Cole v. Hutchins
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.