It was objectively unreasonable to shoot a young man with a gun to his own head when his back was to the officers. Plaintiff also made a prima facie due process claim for being framed by the police for assaulting an officer. “Deliberate framing of a person by the state offends the most strongly held values of our nation.” “As the Third Circuit has stated, ‘no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence.’ Here, the framing was allegedly done in order to conceal and justify excessive force against one of the people our laws and systems are supposed to protect. The rule of law, which we have cherished since our founding, cannot abide such conduct.” Cole v. Carson, 2015 U.S. App. LEXIS 17011 (5th Cir. September 25, 2015):
Our caselaw persuasively has held that the fact that a suicidal person who has a gun to his head, hence poses some deadly risk to officers and others, does not always justify shooting him. Just as there is no “open season on suspects fleeing in motor vehicles,” despite the inherent risks of such flight, there is no open season on suspects with guns. Instead, “the real inquiry is whether the fleeing suspect posed such a threat that the use of deadly force was justifiable.” “[T]he threat must be sufficiently imminent at the moment of the shooting to justify deadly force.”
We conclude that the facts that Ryan was holding a gun to his head, that the officers believed he had made some threat to use it against a peer, and that the officers knew Ryan was attempting to evade officers, could not in the circumstances here justify the use of deadly force. Though Ryan was approaching a busier area from which several witnesses observed the shooting, he was shot in a relatively open area with only the officers immediately present. He was on foot and walking, not running, and he did not know Officers Hunter, Cassidy, and Carson were there.
Indeed, the officers do not argue that they were justified in shooting Ryan by the above circumstances alone. Instead, they focus on the fact that Ryan, whose back was initially towards Officer Hunter, turned to his left immediately before they shot. They argue that if they had waited, Ryan could have continued turning until he was facing Officer Hunter, and shot him before they could react. According to the officers, if Ryan had been allowed to turn around and face Officer Hunter without being fired on, he would have “posed an immediate deadly threat.”
The officers invoke cases in which we have found that a use of deadly force was justified expressly because the person, ignoring police warnings, made some threatening motion towards officers, or moved in a way reasonably interpretable as drawing an immediately dangerous weapon. The act justifying deadly force is sometimes called a Manis act. We have found qualified immunity was inappropriate due to the absence of a Manis act, even when the victim had or was believed to have a gun.
Turning to one’s left is not a threatening Manis act in these circumstances, particularly when the person does not even know the officers are there. It is distinctly unlike raising a gun at officers or moving a gun up to waist-level and gripping as if preparing to fire. The officers make much of our statement in Rice that “the material fact” was that the victim was “armed and moving toward the officers.” But moving purposefully towards an officer who is ordering the person to stop, with a drawn and recently fired gun, is much more threatening than having a gun to one’s own head, and turning without knowledge of the officer’s presence.
In sum, if the Coles’ version of the evidence is believed, it was not objectively reasonable to use deadly force against Ryan Cole when the teenager emerged on foot from the wooded area with a gun to his own head and turned to his left.
. . .
Under the Coles’ version of the facts, it was objectively unreasonable under clearly established law to shoot Ryan. As a result, the fact disputes identified by the district court—including the central issue of whether Ryan pointed his gun at Officer Hunter—are material, and we dismiss the appeal for lack of jurisdiction.
. . .
Deliberate framing of a person by the state offends the most strongly held values of our nation. We echo again the apt words of the First Circuit that, “if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals.” As the Third Circuit has stated, “no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence.” Here, the framing was allegedly done in order to conceal and justify excessive force against one of the people our laws and systems are supposed to protect. The rule of law, which we have cherished since our founding, cannot abide such conduct.
We agree with the Second Circuit that official framing of a person in these circumstances undermines the right to a fair trial. Being framed and falsely charged brings inevitable damage to the person’s reputation, especially where, as here, the crime is a felony involving the threat of violence. Alongside the reputational damage, it requires the person framed to mount a defense, and places him in the power of a court of law, where he may be required to appear. Though these wrongs may be addressed through a Fourth Amendment challenge in many cases, they do not disappear where there is no violation of that amendment. Instead, where there is no more specific constitutional protection available, the Fourteenth Amendment may offer protection. It does so here, where the conduct is undoubtedly shocking to the conscience and no conceivable state interest justifies the deprivations imposed.
