Elliott v. Leavitt
| Decision Date | 08 November 1996 |
| Docket Number | Nos. 96-1150,96-1151,s. 96-1150 |
| Citation | 99 F.3d 640 |
| Parties | Dorothy C. ELLIOTT, Individually and as Co-Personal Representative of the Estate of Archie Elliott, III; Archie Elliott, Jr., Individually and as Co-Personal Representative of the Estate of Archie Elliott, III, Plaintiffs-Appellees, v. Jason LEAVITT, Police Officer for District Heights, MD, Defendant-Appellant, and Prince Georges County, Maryland; David B. Mitchell, Prince Georges County Police Chief; Wayne Cheney, Police Officer; City of District Heights, MD; Michael Conboy, Police Chief for District Heights, MD, Defendants. Dorothy C. ELLIOTT, Individually and as Co-Personal Representative of the Estate of Archie Elliott, III; Archie Elliott, Jr., Individually and as Co-Personal Representative of the Estate of Archie Elliott, III, Plaintiffs-Appellees, v. Wayne CHENEY, Police Officer, Defendant-Appellant, and Jason Leavitt, Police Officer for District Heights, MD; Prince Georges County, Maryland; David B. Mitchell, Prince Georges County Police Chief; City of District Heights, MD; Michael Conboy, Police Chief for District Heights, MD, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Daniel Karp, Allen, Johnson, Alexander & Karp, Baltimore, MD, for Appellant Leavitt; Andrew Jensen Murray, Associate County Attorney, Upper Marlboro, MD, for Appellant Cheney. Robert W. Mance, III, Mundy, Holt & Mance, Washington, DC, for Appellees. ON BRIEF: Denise Ramsburg Stanley, Allen, Johnson, Alexander & Karp, Baltimore, MD, for Appellant Leavitt.
Before WILKINSON, Chief Judge, and WILKINS and WILLIAMS, Circuit Judges.
The parents of Archie Elliott III brought suit under 42 U.S.C. § 1983 alleging that police officers Jason Leavitt and Wayne Cheney used excessive force in the course of arresting Elliott for driving while intoxicated. The district court denied the officers' motion for summary judgment, and the officers filed this appeal challenging the court's refusal to grant them qualified immunity. We reverse the judgment of the district court, finding that the officers' use of deadly force in response to an obvious, serious, and immediate threat to their safety was reasonable under Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm.
On June 18, 1995, police officer Jason Leavitt stopped motorist Archie Elliott. Elliott smelled of alcohol, and he admitted that he had been drinking excessively. Elliott failed several sobriety tests and was having trouble walking. Leavitt called for backup, handcuffed Elliott, and advised him that he was under arrest for driving while intoxicated. Leavitt briefly searched Elliott, finding no weapon or other contraband. Leavitt remembers checking the back side of Elliott's body but does not recall whether he checked the front.
Officer Wayne Cheney soon joined Leavitt on the scene. Cheney assisted Leavitt in placing Elliott in the front passenger seat of Leavitt's police car with the seatbelt fastened, the door closed, and the window rolled up.
The officers were talking by the passenger side of the car when Leavitt noticed a movement and looked to find Elliott with his finger on the trigger of a small handgun pointed at Leavitt and Cheney. Cheney also saw the gun. Elliott was very thin; he had released the seat belt and twisted his arms to the right side of his body to position the weapon. Leavitt yelled, "Gun!," and ordered Elliott to drop it. After Elliott did not respond, Leavitt and Cheney commenced firing, killing Elliott. The officers did not discharge all of their bullets; 22 were fired while 10 were found still in their weapons. Cheney then retrieved the gun, which had remained clasped in Elliott's hand.
A grand jury declined to take action on the shooting, and an internal affairs investigation recommended that both officers be exonerated. The investigation revealed that a few months prior to the shooting, Elliott had threatened a motorist with a handgun. In a sworn statement, the motorist identified the gun recovered from Elliott's body as the same one used to threaten him. An FBI lab report revealed that a blue fiber caught on the gun came from Elliott's shorts. Elliott's parents, as representatives of his estate, then brought this § 1983 excessive force claim against Leavitt and Cheney.
Claims that law enforcement officers used excessive force when making an arrest "should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham, 490 U.S. at 395, 109 S.Ct. at 1871. The standard of review is an objective one. The intent or motivation of the officer is irrelevant; the question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force. Id. at 396-97, 109 S.Ct. at 1871-72. A police officer may use deadly force when the officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer or others. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
This circuit has recognized the doctrine of qualified immunity in excessive force cases, and the inquiry under Graham must reflect the considerations underlying the analysis of an immunity defense. See Slattery v. Rizzo, 939 F.2d 213 (4th Cir.1991). A reviewing court may not employ "the 20/20 vision of hindsight" and must make "allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872. The court's focus should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection. Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th Cir.1991) (citing Graham, 490 U.S. 386, 109 S.Ct. 1865).
Appellees suggest that Elliott did not pose a real threat to the officers, noting that his hands were handcuffed behind his back, that he was placed in the front passenger seat with the seatbelt fastened and the window up, and that the officers were outside the car at the time of the shooting. Such a conclusion, however, is untenable in light of uncontroverted evidence that immediately before firing, Leavitt and Cheney confronted an intoxicated individual pointing a gun at them from only a few feet away with his finger on the trigger. The car window was no guarantee of safety when the pointed gun and the officers at whom it was aimed were in such close proximity. Moreover, expert testimony in the summary judgment record emphasized that even suspects with their hands handcuffed behind their backs have been able to position a concealed weapon so as to fire at an arresting officer.
We have upheld the use of deadly force in cases where the nature and extent of the threat was much less clear to the officers than it was in the case before us. In Greenidge, 927 F.2d 789, for example, we affirmed the judgment in favor of Officer Ruffin although Ruffin was unable to confirm the nature of the weapon before she used deadly force to protect herself. Ruffin witnessed two individuals performing an illegal sex act in a car. She drew her revolver when neither responded to her order to place their hands in view. Ignoring a second order, one of the passengers reached for a long cylindrical object behind the seat. Although the object turned out to be a wooden nightstick, Ruffin believed that it was a shotgun and fired in self-defense. In contrast, here both Leavitt and Cheney clearly saw that Elliott had a handgun. We also note that, like Officer Ruffin, the officers did not immediately use deadly force but fired only after Elliott ignored the order to drop his weapon.
In Slattery, 939 F.2d 213, we held that an officer reasonably felt threatened in a situation where he could not see the suspected weapon at all. During a narcotics arrest, Officer Rizzo went to take custody of Slattery, a passenger in a suspect's car. Rizzo drew his revolver after Slattery ignored repeated orders to place his hands in view. Rizzo could not see Slattery's left hand but could tell that it was partially closed around an object. In response to yet another order to raise his hands, Slattery turned his entire upper body toward the officer. Believing that Slattery was coming at him with a weapon, Rizzo fired. The object later was identified as a beer bottle. We upheld Rizzo's use of force even though he could not confirm that the suspect was holding a weapon and even though it was not entirely clear that Slattery's movement was the beginning of an attack. Here it was obvious that Elliott had a gun pointed at the officers ready to fire. Given the significantly greater clarity of the threat in this case, Greenidge and Slattery compel us to conclude that Leavitt and Cheney's use of deadly force was reasonable under the circumstances.
Both appellees and the district court suggest to us several grounds on which Greenidge and Slattery might be distinguished. None of those grounds, however, serve to vitiate the use of force employed in this case.
The district court stated that ...
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