Officer Who Used Suspect as ‘Human Shield’ Entitled to Qualified Immunity, Seventh Circuit Holds
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.
An officer who held his gun to a suspect’s head, while using the suspect as a “human shield,” was entitled to qualified immunity because the officer’s conduct did not violate clearly established law, the Seventh Circuit recently held.
In the early morning hours of November 20, 2014, Officer Michael Raines, an off-duty Cook County correctional officer, approached the scene of a scuffle outside the Funky Buddha Lounge. He observed Fernando Lopez turn away from a group of fleeing people and fire two gunshots into the air. Officer Raines then approached Lopez with his own gun drawn.
Officer Raines and Lopez then walked toward each other and Lopez waved his gun up and down, though it is not clear he aimed the gun directly at Officer Raines. Lopez reached to open his car door, and Officer Raines then fired. Lopez, hit by at least one bullet, turned, dropped his gun, and staggered. Officer Raines then fired five more times, firing all six rounds in three seconds.
Lopez then ran to the sidewalk and held himself against a wall. As Officer Raines pursued Lopez, Mario Orta, a passenger from Lopez’s car, picked up the dropped gun and fired a shot directly at Officer Raines. The shot missed and two seconds later, Officer Raines reached Lopez on the sidewalk.
The remaining events were all captured on several security cameras. For about three and a half minutes, Orta and Officer Raines engaged in a protracted standoff with guns pointed at one another. Throughout the standoff, Officer Raines simultaneously restrained Lopez and “used him as a human shield to prevent Orta from getting a clean shot.”
During the confrontation, Officer Raines alternated between holding his gun at Lopez’s head, using it to wave off bystanders, and pointing the gun straight at Orta. Lopez, “injured but still alert, repeatedly swatted at Raines’s gun in an effort to dislodge it.” Less than five minutes after the whole incident began, Orta fled the scene.
Lopez survived, pleaded guilty to a state law firearms offense, and filed a Section 1983 action in U.S. District Court for the Northern District of Illinois against Officer Raines, the Sheriff of Cook County, and Cook County, alleging the officer used excessive force in violation of Lopez’s Fourth Amendment rights.
The district court entered summary judgment for the defendants, concluding that Officer Raines was entitled to qualified immunity. On that basis, the district court dismissed Lopez’s entire case. Lopez then appealed to the U.S. Court of Appeals for the Seventh Circuit, which affirmed the district court’s decision.
The Seventh Circuit’s qualified immunity analysis turned on whether Officer Raines violated Lopez’s clearly established Fourth Amendment right to be free from an unreasonable seizure. For a law to be clearly established, the “existing precedent must have placed the statutory or constitutional question beyond debate.” The Court commented, “[t]hat sounds like a high bar because it is – qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.”
The Court then analyzed Officer Raines’s use of force in two phases: the shooting of Lopez and the use of Lopez as a human shield during the sidewalk standoff.
First, the Court determined that upon encountering Lopez, Officer Raines knew only that Lopez had just fired two rounds and was walking gun-in-hand toward the officer. On those facts, although a “warning is decidedly preferred,” that Court held Officer Raines was entitled to qualified immunity “as to the first shot.” From there, the Court wrote, “the case gets much harder.”
Lopez argued that even if the first shot did not violate established law, the officer’s subsequent shots did. But, the Court disagreed, writing that Lopez’s argument “discounts the speed and unpredictability with which events unfolded on the street that morning.” Noting that Officer Raines fired all of his shots in a span of three seconds, the Court wrote that Lopez could not identify any case that clearly establishes a reasonable officer could not use lethal force over such a short period in response to circumstances similar to those Officer Raines observed on the street.
The Court then turned to Officer Raines’s conduct on the sidewalk and began its analysis by crediting that Officer Raines never again fired his weapon. However, “[p]utting a gun to someone’s head is no doubt a use of force,” and the use of such force “is unreasonable when the suspect is subdued and complying with orders.” But, the Court held, Lopez was actively trying to swat Officer Raines’s gun away as the officer “tried to fend off an armed and dangerous Orta.” For those reasons, the Seventh Circuit concluded that it “cannot say that Officer Raines’s actions on the sidewalk violated law clearly established in 2014.”
After dispensing with Lopez’s legal arguments, the Court commented on the difficulty of the case. The video of the scene gave the Court “the distinct impression” that Lopez was about to get in his car and leave right when Officer Raines opened fire. “That observation invites the conclusion that Raines may not have needed to use lethal force at all.”
The Seventh Circuit concluded by affirming the district court’s decision granting Officer Raines qualified immunity.
Read the full Seventh Circuit opinion: Lopez v. Sheriff of Cook County, et al.
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