The use of deadly force here wasn’t reasonable under the Fourth Amendment. The shooting victim had a gun in hand but he hadn’t threatened the officer with it. The failure to give a warning warn “exacerbate[s] the circumstances” and supports the finding of unreasonableness. Cole v. Hutchins, 2020 U.S. App. LEXIS 16945 (8th Cir. May 28, 2020):
Applying these considerations, we conclude Officer Hutchins’s use of deadly force was not objectively reasonable. The “facts known” to Officer Hutchins “at the precise moment [he] effectuate[d] the seizure,” see Schulz, 44 F.3d at 648, were that Richards, with his gun pointed either toward the ground or the sky, retreated down Underwood’s front steps and had turned away from his front door. In that moment, Officer Hutchins did not have probable cause to believe Richards posed an immediate threat of serious physical harm to Underwood as Richards was not pointing the weapon at Underwood or wielding it in an otherwise menacing fashion. In fact, Richards was visibly retreating from Underwood’s home. See Partridge, 929 F.3d at 565-67 (concluding that “no reasonable officer” would have viewed individual as “immediate threat” where, although individual was armed and possibly intoxicated, the individual was only pointing a gun at his own head and “began to move the gun away from his head” following an officer’s order to do so when he was shot). And any such immediate threat Richards may have posed to Underwood previously was “no longer present,” see Rahn, 73 F. App’x at 901, when Officer Hutchins chose to shoot him, as upwards of five seconds elapsed between when Richards retreated from Underwood’s door and turned toward his vehicle and when Officer Hutchins opened fire.
Furthermore, Officer Hutchins chose to “stand silent before shooting,” cf. Estate of Morgan v. Cook, 686 F.3d 494, 497-98 (8th Cir. 2012), despite having five to ten seconds from when he saw Richards emerge from behind his vehicle with a gun to when he shot Richards, which was enough time to provide a warning, see Ngo, 495 F.3d at 603. His failure to warn “exacerbate[s] the circumstances,” see Ludwig, 54 F.3d at 474, further confirming that use of deadly force was objectively unreasonable here.