Use of deadly force during police chase not shown clearly justified; MSJ denied

The defendant police officer did not show in his motion for summary judgment that deadly force was justified. A fact question remained for trial on whether shooting was necessary. Hayes v. Wickert, 2006 U.S. Dist. LEXIS 84316 (W.D. Wash. November 20, 2006):

Officer Wickert also argues that his use of force was reasonable because he feared for the safety of others based on Plaintiff’s speeding, driving without lights at night, and his driving into oncoming lanes of traffic (reckless driving). Considering all the facts and circumstances, Officer Wickert is unable, for the purposes of this motion, to establish that his use of force was reasonable because he feared an “immediate threat” to the safety of others. Graham at 396. The record is silent on whether there were any people nearby. The record does indicate that these events took place at night. Officer Wickert points to Brosseau v. Haugen, 543 U.S. 194 (2004) in support of his position that his use of force was reasonable because he was concerned about the safety of others. Dkt. 17-1, at 9. In Brosseau, the Supreme Court affirmed this Court’s judgment, and found that a police officer was entitled to qualified immunity because prior case law did not “clearly establish” that the police officer’s conduct violated the Fourth Amendment. Id. at 201. However, at this stage in the inquiry the Court is examining whether a constitutional violation occurred, not whether the violated right was clearly established. The Supreme Court did not address the first factor under Saucier, whether Haugen’s constitutional rights had been violated, in that case. In any event, the factual setting in Brosseau was different then in the instant case. There, police were called to neighborhood during day to respond to a fight between Haugen and two other men at Haugen’s mother’s house. Id. at 196. When the police arrived Haugen fled. Id. After a search, Haugen ran back to his mother’s front yard and jumped into a Jeep, parked in the driveway, which was facing an occupied car, also parked in the driveway. Id., at 196. There was another occupied vehicle parked behind the car. Id. An officer ran up to the Jeep, pulled her gun and ordered Haugen out of the vehicle. Id. The police officer broke the driver’s side window and tried, but failed, to get the keys. Id. As the Jeep started, or shortly after it began to move, the officer jumped back and to the left and fired on shot at Haugen. Id. at 196-197. The officer there explained that she shot Haugen because she was “fearful for the other officers on foot who she believed were in the immediate area, for the occupied vehicles in Haugen’s path, and for any other citizens who might be in the area.” Id. at 197. Here, unlike in Brosseau, there is no evidence that there were other people in the area, much less that there was an “immediate” threat to their safety. Accordingly, this factor, at this stage in the case, weighs against a finding that Officer Wickert’s use of force was reasonable here. At least, there are material issues of fact.

Tasering a suspect three times who refused to remove his hand from his pocket when officers feared a weapon was justified, and officers lawfully recovered a gun and drugs from his pocket in a search incident. United States v. Hoffman, 2006 U.S. Dist. LEXIS 84299 (N.D. Iowa November 17, 2006).*

Firefighters responding to a call extinguished the fire and cleared smoke from the building finding a marijuana grow operation. One defendant’s motion to suppress was denied for his lack of standing to challenge the search, which, by all accounts would be a valid plain view during the extinguishing of the fire. United States v. Lee, 2006 U.S. Dist. LEXIS 84512 (N.D. Cal. November 8, 2006).*