CA5: Firing assault rifle into car with suicidal driver during high speed chase not constitutionally unreasonable

An officer firing an assault rifle into a fleeing stolen car operated at high speeds by a suicidal armed man did not commit a constitutional violation. There was no constitutional obligation on the part of the officer to use less than deadly force to stop him considering all the facts and circumstances. Thompson v. Mercer, 2014 U.S. App. LEXIS 15241 (5th Cir. August 7, 2014):

Any suggestion that the threat to the officers had already passed is equally unpersuasive. The Thompsons contend that Mercer’s decision was unreasonable at the time it was made because Keith’s “truck didn’t pose a sufficient threat of harm, especially after Mercer had struck the radiator with three bullets ….” But the Thompsons’ argument counterfactually presumes that Keith was only a threat to the extent that the truck was operational. Yet the truck was not the only deadly weapon at Keith’s disposal. On the contrary, it is undisputed that he was in possession of a stolen firearm and that Mercer was aware of that fact. No one knows whether Keith had any intention of using the gun, but assume for the purposes of summary judgment that he did not. Even so, Mercer had no way of ascertaining Keith’s intent, and there was no visible sign of surrender. Given that this unidentified suspect was admittedly suicidal and had already acted with utter desperation in attempting to evade law enforcement, Mercer was justified in assuming that there was an ongoing “threat of serious harm to the officer or others,” even if Keith’s vehicle was already disabled. Carnaby, 636 F.3d at 188; see also Plumhoff v. Rickard, __ U.S. __, 134 S. Ct. 2012, 2022 (2014) (rejecting argument that officer’s firing of 15 rounds constituted excessive force because “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended”).

The Thompsons nevertheless contend that—to whatever extent law enforcement was in danger—the officers created that danger by trying to intercept Keith’s vehicle. The argument is wholly without merit. This court has consistently rejected similar reasoning. E.g., Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir. 1992) (rejecting argument that officers would not have been in danger if they had acted differently). The question is not whether “the force would have been avoided” if law enforcement had followed some other “police procedures.” Id. at 1275-76 (quoting Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir. 1985), reh’g denied, 778 F.2d 790 (5th Cir. 1985)). Instead, “regardless of what had transpired up until the shooting itself,” the question is whether “the officer [had] reason to believe, at that moment, that there was a threat of physical harm.” Id. at 1276. As already explained, the requisite threat was present here. Ultimately, it was Keith—not the officers—”who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice” that Sheriff Mercer had to make. Scott, 550 U.S. at 384.

Finally, there is little merit in the Thompsons’ assertion that law enforcement was constitutionally required to continue lesser efforts to disable the vehicle. Officers from three agencies had already tried to intercept and disable the vehicle four times. They tried to deploy stop sticks on the interstate, and a deputy later fired a shotgun at Keith’s tires. These attempts were unsuccessful in part because officers had to remain mindful of the welfare of the pursuing officers and other motorists. The record suggests that Sheriff Mercer was the last one who could intercept Keith’s vehicle before he headed into the town of Lone Camp, which the Thompsons describe as “approximately a mile” away. It seems clear that law enforcement reasonably attempted alternate means of seizure before resorting to deadly force. Given the circumstances and the egregious nature of Keith Thompson’s flight, there was no Fourth Amendment violation in that decision.