Qualified immunity denied off-duty officer who shot plaintiff; it was not apparent during the “stop” that plaintiff even knew defendant was a police officer

Excessive force claim was filed by plaintiff against an officer who was a bank fraud investigator in an unmarked car who had not made a traffic or felony stop and approached plaintiff with gun drawn and then stuck it through plaintiff’s car window. Scheuerman v. City of Huntsville, 499 F. Supp. 2d 1205 (N.D. Ala. 2007):

Weaber argues that he is entitled to qualified immunity on the excessive force claim because a police officer is allowed to use deadly force “when he is confronted with a car backing toward him in reverse as he is approaching the driver, where that car actually makes contact with his leg, arms, and foot, where he fears the car is going to pull him under and kill him, and where the entire incident evolves rapidly[,] lasting only a matter of seconds.” The Supreme Court has instructed that courts are to evaluate excessive force claims considering the “totality of the circumstances.” Graham v. O’Connor, 490 U.S. 386, 396 (1989). The court looks not only to the moment shots were fired, but also examines the circumstances immediately prior to Weaber’s decision to use deadly force. The court must ask what precipitated the need to shoot plaintiff.

This is not a case where a uniformed officer uses potentially deadly force by crashing into the driver to prevent harm to others, after activating his blue lights and siren, and chasing a car whose driver is fleeing and driving recklessly in the dead of night. See Scott v. Harris, 127 S. Ct. 1769 (2007).

This is not a case where a uniformed officer, attempting to apprehend a drug trafficker, identifies himself and uses deadly force in self-defense of a moving car. See Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005).

This is not a case where a uniformed officer uses deadly force on a suspected felon after he avoids an investigatory pat-down, flees in a car, and engages in a high-speed reckless chase with multiple police cars in tow, and refuses to get out of his car once it had been blocked on three sides and told by police to exit his vehicle. See Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002).

Instead, this is a case in which an off-duty investigator, who was not in uniform, exited his unmarked vehicle to confront an individual, and drew his weapon when there was no reasonable suspicion that a crime had even been committed. It is undisputed that plaintiff did not see Weaber exit his vehicle, and was not aware that Weaber was walking toward plaintiff’s automobile, until Weaber’s arm, with his hand holding a gun, appeared through his front window. Viewing the totality of the circumstances, it was not objectively reasonable for Weaber to use deadly force on the plaintiff.

The plaintiff sued pro se over a laundry list of issues from a federal search warrant, all of which lacked any merit, including a claim that the U.S. Magistrate Judge lacked authority to sign off on search warrants, and the case was dismissed. First, he alleged that the warrant lacked a judge’s signature and stamp from the court, but all he had were copies, and the court takes judicial notice of the records on file that are signed originals. The second group of claims were that the informant was not brought before the judge to swear to the affidavit. An affiant may appear and relate hearsay, and this hearsay is sufficient. Finally, qualified immunity provides protection for all defendants. Collins v. Bruns, 2007 U.S. Dist. LEXIS 60644 (E.D. Mo. August 17, 2007).*