CA10: Shooting a person fleeing a shooting scene without determining he was the shooter might have been unreasonable, but right not to be shot in this situation not clearly established (Really)

In a § 1983 Fourth Amendment excessive force suit, officers heard a gun shot and saw people running as a crowd left a concert. They shot and killed the decedent, and a jury could conclude that the officers unreasonably determined that the decedent was the active shooter and thus that the officers violated his Fourth Amendment right to be free from excessive force. However, the district court properly granted summary judgment in favor of the officers on the basis of qualified immunity because the officers had not violated clearly established law under the facts presented. In particular, the state of the law on the date of the incident did not provide the officers with fair warning that it was unconstitutional for them to open fire on a fleeing person they, perhaps unreasonably, believed was armed in what they believed to be an active shooter situation. Estate of Smart v. City of Wichita, 2020 U.S. App. LEXIS 5811 (10th Cir. Feb. 26, 2020). (Note: Reading this opinion left me incredulous. Qualified immunity is working to destroy trust between government and its citizens, and SCOTUS doesn’t seem to care.)

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