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Police Shooting of Unarmed Suspect Who Threatened with Fake Gun Deemed Reasonable

September 16, 2015 | Virginia News

Written by Michelle L. Warden and Cullen D. Seltzer

Police Officers are often faced with unimaginable circumstances that most of society runs away from. However, police officers took the oath to protect and serve, and to run towards that danger. Sometimes, running towards that danger means that an officer will have to make a split second decision as to whether deadly force is necessary. It is the moment that all police officers train for—but hope that they do not have to face.

On July 14, 2010, officers from the City of Richmond police department were faced with this very situation.  Two SWAT officers fatally shot a suspect who barricaded himself in an upstairs master bathroom of a home. The suspect, who had active warrants on file and who was also the suspect from a homicide that took place earlier that morning, made numerous threats to the police officers triggering the standoff.  The SWAT officers responding to the scene were notified of the suspects’ criminal history and the threats made thus far.  The SWAT officers positioned themselves in an adjacent bedroom with eyes on the master bathroom door, which was less than 15 feet away.  While barricaded, the suspect made numerous threats to the officers that he would shoot any police officer or dog that tried to come in after him, that he was going to go out in a “blaze of glory,” and that he was going to come out with his “junk”—which the officers believed meant a gun.  One of the negotiators with eyes on the suspect believed that he saw a gun in the suspect’s waistband, and this information was relayed to the SWAT officers.  After several hours of negotiations and the suspects repeated threats to the police, the decision was made to fire two rounds of tear gas into the master bathroom forcing the suspect to hopefully emerge peacefully. However, the suspect exited the master bathroom and charged towards the SWAT officers with his arms extending and holding what appeared to be a barrel of a gun with a t-shirt wrapped around it.  In fear of their lives and those of their fellow officers, the first SWAT officer positioned across the hall fired one round striking the suspect, while a second SWAT officer fired several rounds at the suspect striking him on multiple occasions. The suspect was transported to the hospital, where he was pronounced dead.

It was later determined that the “handgun” believed to be displayed by the suspect—was a woman’s high-heeled shoe, the heel of which was pointed at the SWAT officers to mimic the barrel of a gun.

The suspect’s family filed a civil action against the officers alleging that the officers used excessive force. The family attempted to argue that there was a conspiracy or a cover-up amongst the officers and the police department.  In support, the family argued that this case should be tried by a jury because there was a material dispute of fact as one of the SWAT officers saw a “towel”—not a “t-shirt”—laying on the floor near the suspect, and another SWAT officer did not recall seeing the shoe or a t-shirt.

The first SWAT officer filed a Motion for Summary Judgment requesting the Court to dismiss the claims against him because his use of force was not excessive and, even if it was, he was entitled to qualified immunity. Despite the family’s assertion of conspiracy, the Eastern District Court of Virginia held that there was no genuine dispute of material fact as to the manner in which the officer exited the master bathroom and charged at the SWAT officers. The District Court also held that whether the other SWAT officers recalled seeing a shoe or t-shirt was not a material dispute of fact. Rather, “a lack of recollection does not create an issue of fact that will defeat a motion for summary judgment.”  Hubbard v. Bohman, 2013 WL 2645260 at *8 (M.D.N.C. 2013).  Under the circumstances of this case, the District Court granted the SWAT officer’s Motion for Summary Judgment.  The District Court took it one step further and held that the first SWAT officer was entitled to qualified immunity at the time that he shot the suspect because he was faced with what he reasonably believed to be an imminent deadly threat to himself and the other officers with the City of Richmond Police Department.

The District Court entered its Order on March 18, 2015, even amongst the scrutiny that police officers are currently under by the public.  This case goes to show that despite recent events in the media, when officers act reasonably under the circumstances, they will be afforded protection under the law, and rightfully so.

Click here to download a copy of the opinion related to this case.

If you have questions, Sands Anderson’s Law Enforcement and Public Safety Defense Team would be glad to speak with you.