CA10: Shooting of decedent when he raised a gun at his arrest appears justified

When officers, including the SWAT team, came to arrest the decedent, he had a gun in hand and raised it. He was already known to be potentially violent, and the shooting was reasonable under the circumstances. Estate of Valverde v. Dodge, 2020 U.S. App. LEXIS 24083 (10th Cir. July 30, 2020):

In light of the above principles, the decisive question is whether Dodge was reasonable in believing that Valverde was going to fire his gun at Dodge or other officers. We conclude that Dodge’s belief was reasonable. He had been informed that Valverde was involved in high-violence criminal enterprises-dealing guns and large quantities of drugs. Dodge saw the barrel of a gun as Valverde pulled it from his waistband or pocket. To wait to see what Valverde would do with the weapon could be fatal. Dodge fired immediately. The sound of his first shot was less than a second after Valverde pulled out his gun. The sound of his last shot was a mere second after the first.

The district court denied Dodge’s motion for summary judgment based on qualified immunity because it said that the evidence could support a finding that Valverde was not shot until after he had disposed of his gun and was raising his hands in surrender. This ruling, however, overlooked two fundamentals of the necessary analysis. First, the district court failed to consider that allowance needs to be made for the fact that the officer must make a split-second decision. The Constitution permits officers to make reasonable mistakes. Officers cannot be mind readers and must resolve ambiguities immediately. See Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995) (“Qualified immunity does not require that the police officer know what is in the heart or mind of his assailant.”). Perhaps a suspect is just pulling out a weapon to discard it rather than to fire it. But waiting to find out what the suspect planned to do with the weapon could be suicidal.