CA5: Use of deadly force to stop a fleeing driver with officer on running board was objectively reasonable

An officer attempted to arrest the driver of a vehicle on a warrant, but the driver refused to submit and drove off, with the officer on the running board. Ultimately, the officer shot and killed the driver. The use of deadly force here was objectively reasonable, no matter what the alleged subjective intent of the officer. Davis v. Romer, 2015 U.S. App. LEXIS 1714 (5th Cir. February 2, 2015):

Fort Worth Police Officer J. Romer (“Romer”) was attempting to arrest Charal Thomas (“Thomas”), who was sitting in the driver’s seat of his vehicle. Although there was a warrant for his arrest, Thomas refused to exit his vehicle and submit to a lawful arrest. Romer reached inside the driver’s window, and Thomas suddenly began driving away. Romer then jumped on the vehicle’s running board and ordered Thomas to stop the vehicle, but Thomas ignored the order and continued to drive toward the entrance to the freeway. After Thomas refused to stop the vehicle, Romer, who was still standing on the running board of the fleeing vehicle, fatally shot Thomas. Thomas’s four children, three of whom were passengers in Thomas’s vehicle, and an unrelated passenger brought this suit against Romer, alleging, among other things, excessive use of force in violation of the Fourth Amendment. The district court granted summary judgment after determining that Romer was entitled to qualified immunity. Because we conclude that there was no constitutional violation in Romer’s use of deadly force, we affirm the district court’s judgment.

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Appellants contend that Officer Romer violated the Fourth Amendment by using excessive force. The Fourth Amendment guarantees the right to be free from “unreasonable searches and seizures.” U.S. Const. amend. IV. Here, it is undisputed that Romer’s use of deadly force against Thomas constituted a seizure. Accordingly, Appellants “need only show that the use of deadly force was excessive, and that the excessiveness of the force was unreasonable.” Thompson v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014) (citations and internal quotation marks omitted). However, an officer’s use of deadly force is not unreasonable when the officer has reason to believe that the “suspect poses a threat of serious harm to the officer or others.” Id. (citations and internal quotation marks omitted). We must determine the reasonableness of the use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Plumhoff v. Rickard, __ U.S. __, 134 S. Ct. 2012, 2020 (2014) (citation and internal quotation marks omitted).

Appellants’ principal argument is that Romer’s conduct caused the dangerous encounter. Specifically, Appellants contend that “Romer’s life was in danger because of his own intervening actions of attempting not once but twice, to grab a hold of a moving vehicle when Romer had a choice not to do so.” Blue brief at 14. Appellants contend that the district court erred in interpreting this Court’s precedent to limit its analysis to the circumstances existing at the moment Romer shot Thomas. Recently, this Court has rejected the same argument. In Thompson v. Mercer, an officer ended a two-hour high-speed chase by fatally shooting the suspect with an assault rifle. 762 F.3d at 436. The Thompsons argued that the officers created the danger in their attempts to intercept the fleeing vehicle driven by the suspect. Id. at 439. This Court held that such an argument was “wholly without merit,” explaining that it had “consistently rejected similar reasoning.” Id. at 439-40. This Court explained that the “question is not whether the force would have been avoided if law enforcement had followed some other police procedures.” Id. at 440 (citations and internal quotation marks omitted). Instead, the Court explained that “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. (citation and internal quotation marks omitted) (alteration in original). This Court concluded that it was the fleeing driver and not the officer “who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice that [the officer] had to make.” Id. (citation and internal quotation marks omitted) (alteration added). Accordingly, this Court held that the officer’s shooting of the suspect did not violate the Fourth Amendment. Id.

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Nonetheless, Appellants argue that Romer did not kill Thomas in an act of self-preservation. Instead, Appellants claim Romer’s “actions were motivated by a violent and sadistic rage to kill Charal Thomas when he left the scene of a traffic stop.” Id. at 10. However, the “reasonableness inquiry is objective: the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Rockwell, 664 F.3d at 991 (citation and internal quotation marks omitted). Thus, Romer’s subjective intent is irrelevant to the reasonableness determination.

Appellants further attempt to distinguish the above-discussed precedent, stating that unlike those cases, in the instant case, Thomas was unarmed. The Supreme Court has held that it is constitutionally unreasonable to use deadly force on an unarmed suspect by shooting him while he was fleeing on foot. Tennessee v. Garner, 471 U.S. 1 (1985). This is because the officer “could not reasonably have believed” that the suspect “posed any threat,” and the officer “never attempted to justify his actions on any basis other than the need to prevent an escape,” Id. at 21. That case is inapposite. Here, the testimony and the diagram of the scene demonstrate that Romer was standing by the driver’s door when Thomas suddenly drove to the left with Romer’s arm inside the vehicle. Moreover, it is undisputed that Romer was standing on the running board of the vehicle as it was being driven on the service road and headed toward the freeway. Clearly, Thomas’s actions put the officer in harm’s way, and there was a very real danger that Romer would sustain serious injury or death. Thus, unlike in Garner, Thomas’s actions were posing a threat to Romer at the time of the shooting.