Devin Jefferson v. George Lias ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 20-2526
__________
DEVIN JEFFERSON,
Appellant
v.
OFFICER GEORGE LIAS; CITY OF ELIZABETH
__________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2:15-cv-01086)
District Judge: Honorable Michael A. Hammer
______________
Argued: May 20, 2021
______________
Before: McKEE, RESTREPO, and FUENTES, Circuit Judges
(Filed: December 16, 2021)
Daniel Ginzburg [ARGUED]
Unit 736
151 Highway 516
Old Bridge, NJ 08857
Counsel for Appellant Devin Jefferson
Daniel Antonelli [ARGUED]
Antonelli Kantor
354 Eisenhower Parkway
Suite 1000
Livingston, NJ 07083
Counsel for Appellee George Lias
Robert F. Varady [ARGUED]
LaCorte Bundy Varady & Kinsella
989 Bonnel Court
Union, NJ 07083
Counsel for Appellee City of Elizabeth
__________
OPINION OF THE COURT
__________
RESTREPO, Circuit Judge.
This appeal involves claims arising out of a police
shooting that occurred during the course of a car chase. Ap-
pellant Devin Jefferson challenges the District Court’s grant of
summary judgment against his Fourth Amendment excessive
force and Monell failure-to-train claims, brought against Ap-
pellees Officer George Lias and the City of Elizabeth, respec-
tively. The District Court determined that Officer Lias was en-
titled to qualified immunity, and moreover that Jefferson suf-
fered no constitutional injury, leaving no basis for his Monell
claim. For reasons we will explain below, we will reverse the
District Court’s order with respect to both claims and remand
for further proceedings in accordance with this opinion.
I.
A. Background
The events in question took place on January 15, 2014,
as Jefferson was driving home from a concert venue in Eliza-
beth, New Jersey. Officer Timothy Staffer of the Elizabeth
2
Police Department, on patrol in his cruiser that night, took no-
tice of Jefferson traveling at a high speed with his car alarm
blaring. Jefferson, playing music loudly in his car, was appar-
ently oblivious to the alarm. Officer Staffer, suspecting the ve-
hicle may have been stolen, turned to follow Jefferson and ac-
tivated his siren and overhead lights in an attempt to pull over
the vehicle. As it so happened, Jefferson was approaching the
end of a five-year probation term and was driving with an open
container of alcohol in the car. Fearing a probation violation,
Jefferson did not pull over for Officer Staffer, and a car chase
ensued.
Officer Lias, also on duty that night, eventually joined
the pursuit of Jefferson after hearing radio dispatches concern-
ing the activity. At the time Lias joined the pursuit, he was
only aware of the information that had been communicated
over the radio, namely that Jefferson was driving a possibly
stolen vehicle, the vehicle’s license plate number, and the di-
rection it was headed. Although other officers during the pur-
suit “observed Mr. Jefferson traveling at high speeds, running
red lights, ignoring police signals to pull over, and driving in
close proximity to other vehicles,” Lias did not personally wit-
ness Jefferson running red lights or weaving in and out of traf-
fic. Lias Br. 5.
Near the end of the pursuit, Jefferson was traveling
northbound on Jefferson Avenue when he made a right turn on
Mary Street, hitting a fire hydrant. Officers then surrounded
Jefferson’s vehicle on both left and right sides. To evade the
officers, Jefferson reversed, first striking a police vehicle be-
fore backing up onto the intersection of Jefferson Avenue and
Mary Street, attempting to turn back onto Jefferson Avenue
from the direction he had arrived. Lias arrived at the scene in
his vehicle as Jefferson was in the process of completing his
maneuver in the intersection. He had not personally witnessed
Jefferson striking either the fire hydrant or the police vehicle.
3
Both parties characterize the following moments, which
culminated in Lias shooting Jefferson, in different terms. Ac-
cording to Jefferson, as he finished reversing from Mary Street
and began to proceed forward onto Jefferson Avenue, “Lias
exited from the front passenger door of his vehicle, maneu-
vered around the hood of his car toward Plaintiff’s vehicle, and
settled into a shooting position. Officer Lias discharged his
firearm at Plaintiff as Plaintiff’s vehicle passed in front of him
. . . Prior to shooting, Officer Lias did not see any police offic-
ers attempt to escape Plaintiff’s vehicle path.” Appellant Br.
at 5. In Officer Lias’ telling, “[i]n the last split second as Mr.
Jefferson was passing Officer Lias’s police car, Officer Lias
discharged his firearm once at Mr. Jefferson’s vehicle because
he testified that he feared for his own safety and others around
him, including other officers and Officer Banos who he did not
know where he was at the time but knew he was in the area.”
Lias Br. at 6. The record contains video footage depicting the
shooting obtained from a utility pole.
Jefferson was struck in his left forearm, fracturing the
bones there. After he was hit, Jefferson continued to drive
away and checked himself into the hospital. Jefferson was
eventually indicted in New Jersey State Court for second-de-
gree eluding, and ultimately pled guilty to the charge.
II. DISCUSSION1
On February 4, 2015, Jefferson initiated an action bring-
ing two 42 U.S.C. § 1983 claims: one against Officer Lias for
1
The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the District Court’s grant of summary judgment. Gold-
enstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016).
“Viewing the evidence in the light most favorable to the non-
movant, summary judgment is appropriate only if there is ‘no
genuine issue as to any material fact [such] that the moving
party is entitled to judgment as a matter of law.’” Kelly v. Bor-
ough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (quoting
Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)); Fed. R.
4
excessive force under the Fourth Amendment, and the other
against the City of Elizabeth under a Monell failure to train
theory of liability.2 After discovery, both parties moved for
summary judgment, which the District Court granted on June
30, 2020, in favor of Appellees. The District Court held that
Officer Lias’s use of deadly force was reasonable under the
circumstances, but even assuming it was not, that he was
shielded from liability by qualified immunity because his ac-
tions did not violate clearly established law. Further, because
it found there was no underlying constitutional violation, the
District Court determined that Jefferson’s Monell claim against
the City of Elizabeth failed as a matter of law. We will begin
our analysis with a discussion of the standards governing ex-
cessive use-of-force claims.
A. Officer Lias’s use of force was not “reasonable”
as a matter of law under the Fourth Amendment
Claims of excessive force against law enforcement of-
ficers brought by persons outside of police custody are ana-
lyzed under the Fourth Amendment. Graham v. Connor, 490
U.S. 386, 395 (1989). “To prevail on a Fourth Amendment
Civ. P. 56(a). “[T]he judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to deter-
mine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
2
In Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978),
the Supreme Court held that a municipal government may be
liable under § 1983 “when execution of a government’s policy
or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,
inflicts the injury” alleged by the plaintiff. In subsequent cases
defining the scope of Monell liability, the Court explained that
“the inadequacy of police training may serve as the basis for §
1983 liability only where the failure-to-train amounts to delib-
erate indifference to the rights of persons with whom the police
come into contact.” City of Canton v. Harris, 489 U.S. 378,
388 (1989).
5
excessive-force claim, a plaintiff must show that a seizure oc-
curred and that it was unreasonable under the circumstances.”
El v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020)
(quoting Lamont v. New Jersey, 637 F.3d 177, 182-83 (3d Cir.
2011)). Jefferson’s shooting undoubtedly constituted a sei-
zure. Torres v. Madrid, 141 S. Ct. 989, 999 (2021) (officers
seized fleeing suspect by shooting and hitting her, although she
eluded capture). The relevant inquiry thus is whether Lias’s
use of force was reasonable under the circumstances.
Determining whether force used in a given instance is
reasonable “requires a careful balancing of the nature and qual-
ity of the intrusion on the individual’s Fourth Amendment in-
terests against the countervailing governmental interests at
stake.” Graham, 490 U.S. at 396 (quotations and citations
omitted). Moreover, “[t]he ‘reasonableness’ of a particular use
of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hind-
sight.” Id. The inquiry is an objective one, however, and “the
question is whether the officers’ actions are ‘objectively rea-
sonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.”
Id. at 397. In Tennessee v. Garner, the Supreme Court held
that deadly force is not justified in circumstances where a flee-
ing suspect “poses no immediate threat to the officer and no
threat to others.” 471 U.S. 1, 11 (1985).
As this Court noted, additional
[f]actors to consider in making a
determination of reasonableness
include ‘the severity of the crime
at issue, whether the suspect poses
an immediate threat to the safety of
the officers or others, and whether
he actively is resisting arrest or at-
tempting to evade arrest by flight.
6
Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (cit-
ing Graham, 490 U.S. at 396). Other relevant factors are “the
physical injury to the plaintiff, the possibility that the persons
subject to the police action are themselves violent or danger-
ous, the duration of the action, whether the action takes place
in the context of effecting an arrest, the possibility that the sus-
pect may be armed, and the number of persons with whom the
police officers must contend at one time.” El, 975 F.3d at 336
(quotation and citation omitted). Because the inquiry is so fact-
dependent, we have held that “[t]he reasonableness of the use
of force is normally an issue for the jury.” Rivas, 365 F.3d at198 (citing Abraham v. Raso, 183 F.3d 279, 290 (3d Cir.
1999)); see also Lytle v. Bexar Cty., 560 F.3d 404, 411 (5th
Cir. 2009) (noting in “cases where the officer’s conduct is less
clear and an assessment of reasonableness mandates a number
of factual inferences, the case falls within the province of a
jury”).
In its opinion, the District Court did not explicitly dis-
cuss any of the factors articulated in Garner or Graham. Nor
did it discuss our precedent interpreting and applying Gra-
ham’s “reasonableness” standard. Without making reference
to those decisions, the Court, at the end of its qualified immun-
ity analysis, determined that Officer Lias’s use of force was
reasonable, depicting the circumstances involved in the follow-
ing manner:
Plaintiff was engaged in a high-speed car chase
with the police. Officer Lias saw Plaintiff’s ve-
hicle driving recklessly, reversing into an inter-
section, and then driving towards Officer Lias
and his police cruiser. Officer Lias testified that
when he saw the oncoming vehicle he feared for
his safety, the safety of his partner, and other of-
ficers. In a matter of mere seconds, Plaintiff’s ve-
hicle straightened out to avoid hitting Officer
Lias’s police cruiser.
7
App. 10. In viewing the record in the light most favorable to
the nonmoving party, as we must do at summary judgment,
combined with our presumption that the “reasonableness” of
an officer’s use of force is typically best left to a jury to deter-
mine, we are not persuaded that the District Court’s conclusion
here was proper. For instance, upon reviewing the video foot-
age, a jury could very well accept Lias’s and the District
Court’s contention that Jefferson “straightened out to avoid hit-
ting Officer Lias’s police cruiser” in a matter of “mere sec-
onds.” See id. However, it could also determine that Lias was
not in danger of being struck by Jefferson’s car as Jefferson
was in the course of passing him, and that Lias’s decision to
shoot through Jefferson’s driver’s side window was not justi-
fied by any objective threat that Jefferson posed to him or oth-
ers in the area.
We were confronted with a very similar and instructive
set of circumstances in Abraham, 183 F.3d at 282. In that case,
an off-duty police officer, Raso, shot and killed an individual,
Abraham, who was attempting to flee in his car from a Macy’s
from which he had shoplifted merchandise. Id. Multiple issues
were disputed, including where exactly the officer was posi-
tioned vis-à-vis the vehicle in the moments leading up to and
during the shooting; how chaotic the pursuit had been prior to
that moment; how quickly Abraham accelerated once in his
car; and whether the officer was in danger of being run over by
Abraham. Id. at 283-85. However, despite the lack of clarity
in the record as to where exactly the officer was standing when
the bullet was fired, the “shot indisputably came through the
driver’s side window.” Id. at 293.
The officer moved for summary judgment against Abra-
ham’s estate and the district court granted her motion, reason-
ing that “regardless of whether Raso’s use of deadly force was
justifiable in self-defense, Abraham posed an immediate threat
of physical harm to the public, making the shooting objectively
reasonable.” Id. at 282. We refused, however, to adopt the
district court’s assessment on summary judgment that
8
Abraham posed a threat to the public based on its conclusory
characterization of his attempt to flee:
According to the District Court, Abraham “reck-
lessly” drove in reverse at “a high rate of speed”
with people in “close proximity” before he
“rammed” into a parked car. A jury may ulti-
mately accept this version of the facts, but it also
may not.
Id. at 292. Moreover, in assessing the fear that Raso claimed
she experienced on her own behalf, separate from the alleged
threat posed by Abraham toward the public, we further ex-
plained that “the ultimate question is not whether Raso really
was in danger as a matter of fact, but is instead whether it was
objectively reasonable for her to believe that she was. A jury
will have to determine, after deciding what the real risk to Raso
was, what was objectively reasonable for an officer in Raso’s
position to believe about her safety, giving due regard to the
pressures of the moment.” Id. at 294.
Just like in Abraham, the District Court here engaged in
an analogous weighing of the evidence in determining that Jef-
ferson “presented a danger to those in the area” based on his
escape. App. 11. We see no reason to depart from the standard
course established by our precedent in this case. As we decided
in Abraham, a jury ought to have the opportunity to make fac-
tual determinations regarding Officer Lias’s decision to em-
ploy deadly force against Jefferson.
B. Officer Lias is not entitled to qualified immunity
The District Court further concluded that, even assum-
ing Officer Lias’s use of force was objectively unreasonable
under the Fourth Amendment, his actions did not violate
“clearly established” law such that he is entitled to qualified
immunity. We disagree.
9
“Police officers, embodying the authority of the state,
are liable under § 1983 when they violate someone’s constitu-
tional rights, unless they are protected by qualified immunity.”
Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021)
(quoting Santini v. Fuentes, 795 F.3d 410, 416-17 (3d Cir.
2015)). Our review of a district court’s grant of summary judg-
ment based on qualified immunity is de novo. Id. at 164.
Moreover, the officer bears the burden of establishing his enti-
tlement to qualified immunity at summary judgment. Id. at 165
(citing Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014)).
The qualified immunity inquiry contains two prongs: (1)
whether the facts alleged by the plaintiff show the violation of
a constitutional right, and (2) whether the law was clearly es-
tablished at the time of the violation. Kelly v. Borough of Car-
lisle, 622 F.3d 248, 253 (3d Cir. 2010). We will focus our
analysis on the second prong, as the District Court found it de-
terminative in holding that Officer Lias was entitled to quali-
fied immunity.
Recently, in Peroza-Benitez, we articulated how we
should determine whether a right was clearly established at
the time of the violation:
To determine whether a right was “clearly estab-
lished,” we conduct a two-part inquiry. First, we
must define the right allegedly violated at the ap-
propriate level of specificity. This requires us to
frame the right in light of the specific context of
the case, not as a broad general proposition. Sec-
ond, we must ask whether that right was “clearly
established” at the time of its alleged violation,
i.e., whether the right was sufficiently clear that
a reasonable official would understand that what
he is doing violates that right. This is an objec-
tive (albeit fact-specific) question, where an of-
ficer’s subjective beliefs . . . are irrelevant.
10
Peroza-Benitez, 994 F.3d at 165 (citations and some quota-
tions omitted).
Jefferson would have us define the constitutional right
as one that “bars an officer from opening gunfire into the
driver’s side window of a fleeing vehicle passing in front of
him if the driver is not believed to be armed, did not previously
act in a menacing manner, and if there is no immediate danger
to the officer or bystanders.” Appellant Br. at 42. Lias, for his
part, would define the right at a much higher level of general-
ity, contending that it is not a violation of a clearly-established
constitutional right to “shoot[] at a fleeing driver to protect
those who his or her flight might endanger.” Lias Br. at 19.
We would not define the right as narrowly as Jefferson would,
but neither would we adopt so broad a formulation as Lias. In-
stead, we will define the right as follows: a suspect fleeing in a
vehicle, who has not otherwise displayed threatening behavior,
has the constitutional right to be free from the use of deadly
force when it is no longer reasonable for an officer to believe
his or others’ lives are in immediate peril from the suspect’s
flight.
With respect to determining whether this right was
“clearly established” at the time of the shooting, we first turn
“to factually analogous Supreme Court precedent, as well as
binding opinions from our own Court.” Peroza-Benitez, 994
F.3d at 165 (citing Fields v. City of Phila., 862 F.3d 353, 361
(3d Cir. 2017)). Following that, we determine whether there
exists a “robust consensus of cases of persuasive authority in
the Courts of Appeals.” Fields, 862 F.3d at 361 (quoting L.R.
v. Sch. Dist. of Phila., 836 F.3d 235, 247– 48 (3d Cir. 2016)).
“We may also take into account district court cases, from
within the Third Circuit or elsewhere.” Peroza-Benitez, 994
F.3d at 165-66. Conducting that review, in our view, this right
was “clearly established” at the time of the shooting in this case
by Abraham, where we held in a factually analogous context
that “[a] passing risk to a police officer is not an ongoing
11
license to kill an otherwise unthreatening suspect.” Abraham,
183 F.3d at 294; accord Lamont, 637 F.3d at 184.3
Other Courts of Appeals to have considered actions
where officers have used deadly force against non-dangerous
suspects attempting to evade arrest while driving have ruled in
parallel. In Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005),
the Fourth Circuit granted qualified immunity to officers who
shot and killed a fleeing driver as he sped toward them. Even
in doing so, however, the Court drew a distinction between of-
ficers’ decision to fire at the decedent while he approached and
their continued shooting after he had passed them. Citing our
decision in Abraham, it held that “force justified at the begin-
ning of an encounter is not justified even seconds later if the
justification for the initial force has been eliminated.”
3
The District Court determined that Abraham was irrelevant to
its discussion of qualified immunity because the issue was not
raised in that case. It cited two of our non-precedential opin-
ions, Thompson v. Howard, 679 F. App’x 177, 183-84 (3d Cir.
2017), and Martin for Estate of Webb v. City of Newark, 762
F. App’x 78, 84 (3d Cir. 2018), in which we found that officers
were entitled to qualified immunity for their use of deadly force
against drivers attempting to escape arrest, and that Abraham
did not compel a contrary result. In two other non-binding de-
cisions, however, we have relied on Abraham in determining
that it is “clearly established” that the use of deadly force
against fleeing felons that do not pose a threat to officers or
others is unreasonable. See Zion v. Nassan, 556 F. App’x 103,
109 (3d Cir. 2014) (noting based on Abraham that it would be
“premature to grant the defendants qualified immunity” where
pleadings contain allegations that an officer shot “directly at a
driver who is coming toward an officer when the officer has
the opportunity to move out of the way”); Eberhardinger v.
City of York, 782 F. App’x 180, 183, 184 (3d Cir. 2019) (noting
that Abraham “clearly established that Officer Smith’s con-
duct, as alleged by Eberhardinger, violated her Fourth Amend-
ment rights” where allegations were that “Smith—standing to
the left of the slow-moving vehicle and apparently out of
harm’s way—fired four shots at the driver as the vehicle was
passing him or had completely passed him”).
12
Waterman, 393 F.3d at 481. Nevertheless, it determined that
the officers were entitled to qualified immunity at that time be-
cause such a right had not yet been clearly established in their
circuit. Id. at 482. The Fourth Circuit has subsequently held,
however, that Waterman served to “clearly establish” the fol-
lowing: “(1) law enforcement officers may—under certain
conditions—be justified in using deadly force against the
driver of a car when they are in the car’s trajectory and have
reason to believe that the driver will imminently and intention-
ally run over them, but (2) the same officers violate the Fourth
Amendment if they employ deadly force against the driver
once they are no longer in the car’s trajectory.” Williams v.
Strickland, 917 F.3d 763, 770 (4th Cir. 2019) (denying quali-
fied immunity to officers that allegedly shot at driver because
they were no longer in his vehicle’s trajectory).
The Fifth Circuit reached a similar conclusion in Lytle
v. Bexar County, 560 F.3d 404 (5th Cir. 2009), again citing
Abraham along with cases in other circuits to hold that “a sus-
pect that is fleeing in a motor vehicle is not so inherently dan-
gerous that an officer’s use of deadly force is per se reasona-
ble.” 560 F.3d at 416. There, it denied qualified immunity to
an officer where the officer allegedly fired upon a fleeing mo-
torist from a distance standing to the rear and no bystanders
were in the path of the vehicle. Id. at 407-08.
The Sixth, Ninth, Tenth, and Eleventh Circuit Courts of
Appeals have issued analogous decisions. See, e.g., Kirby v.
Duva, 530 F.3d 475, 483 (6th Cir. 2008) (holding “deadly force
cannot be used against an escaping suspect who does not pose
an immediate danger to anyone” and denying qualified immun-
ity where officer allegedly approached slow-rolling vehicle
and fired upon driver); Adams v. Speers, 473 F.3d 989, 993 (9th
Cir. 2007) (holding no reasonably acting officer “could have
believed that he could use deadly force to apprehend” fleeing
driver after stepping out of patrol vehicle and shooting driver
without warning or need for self-defense); Reavis v. Frost, 967
F.3d 978, 994 (10th Cir. 2020) (elaborating that the prior
13
decision in Cordova v. Aragon, 569 F.3d 1183 (10th Cir.
2009), “clearly established” that “use of deadly force is clearly
unreasonable when (1) the only threat is one posed by reckless
driving and (2) the immediacy of the threat to the officer is a
disputed fact that a reasonable jury could resolve against the
officer,” thus denying qualified immunity to the officer who
allegedly fired upon fleeing truck driver as he passed the of-
ficer); Vaughan v. Cox, 343 F.3d 1323, 1333 (11th Cir. 2003)
(denying qualified immunity to the officer, holding that where
fleeing suspect did not pose immediate threat to officers or
other drivers, “[a]pplying Garner in a common-sense way, a
reasonable officer would have known that firing into the cabin
of a pickup truck, traveling at approximately 80 miles per hour
on Interstate 85 in the morning, would transform the risk of an
accident on the highway into a virtual certainty”). Accord-
ingly, binding precedent in our Circuit, along with persuasive
authority from other Courts of Appeals, have “clearly estab-
lished” the right at issue here, as defined above.
The force of these holdings is not blunted by the Su-
preme Court’s decisions cited by the District Court in its anal-
ysis. Each cited case involves circumstances where either the
fleeing driver in question had displayed threatening or aggres-
sive behavior toward others prior to or during the car chase, or
where the Court, based on the record, was willing to determine
that the driver’s conduct while fleeing was so egregious that it
posed an immediate risk to the officers and the public. We will
discuss the cases chronologically. First, in Brosseau v.
Haugen, 543 U.S. 194 (2004) (per curiam), the Court noted
that the incident in question took place before Abraham and
other similar decisions had been issued, and thus the officer
lacked whatever notice that those cases may have provided that
her conduct may have violated the plaintiff’s Fourth Amend-
ment rights. 543 U.S. at 200 n.4. The Court further observed
that the officer there had reason to believe that the plaintiff
posed an immediate threat to the officer and other bystanders
separately from his flight, as the officer was aware that the
plaintiff had gotten into a physical altercation with “a former
14
crime partner” preceding her pursuit of him, and the plaintiff
was wanted on a felony “no-bail” warrant. Id. at 195.
In Scott v. Harris, 550 U.S. 372 (2007), a police officer
bumped a fleeing suspect off of the road after a high-speed
chase where video footage recorded the car “swerve around
more than a dozen other cars, cross the double-yellow line, and
force cars traveling in both directions to their respective shoul-
ders to avoid being hit.” 550 U.S. at 379. Reversing the Court
of Appeals, which adopted the plaintiff’s version of the facts
as is the ordinary course in reviewing a defendant’s motion for
summary judgment, the Supreme Court determined that the cir-
cumstances warranted an exceptional departure from such
practice in light of a video depicting “a Hollywood-style car
chase of the most frightening sort, placing police officers and
innocent bystanders alike at great risk of serious injury.” Id.The Supreme Court further distinguished the force used by the
officer in Scott from cases involving gunfire, noting that “[a]
police car’s bumping a fleeing car is, in fact, not much like a
policeman’s shooting a gun so as to hit a person,” and remained
agnostic as to whether the officer’s actions constituted deadly
force as defined by Garner and its progeny.4 Id. at 383 (cita-
tion and quotation omitted).
The remaining two decisions cited by the District Court
are distinguishable as well. The car chase in Plumhoff v. Rick-
ard, 572 U.S. 765 (2014), was comparable to the circumstances
in Scott, which the Supreme Court noted in its analysis. 572
U.S. at 775. In Plumhoff, a police officer stopped a driver
whose car had only one operating headlight, and in the course
4
In rejecting the defendant’s argument that Scott had “over-
ruled” Abraham, the panel in Zion determined that “Scott and
Abraham are in fact in harmony: it may be reasonable for an
officer to bump a car off the road to stop a reckless driver
who is placing others in peril, while simultaneously unreason-
able to shoot directly at a driver who is coming toward an of-
ficer when the officer has the opportunity to move out of the
way.” 556 F. App’x at 109.
15
of questioning, had reason to suspect the driver may have been
drinking and had previously hit a pedestrian. Id. at 768, 769
n.1. Rather than step out of the vehicle when requested, the
driver fled and led officers on a highway chase in which he
evaded a “rolling road block” and passed over two dozen vehi-
cles while “swerving through traffic” at speeds exceeding 100
miles per hour. Id. at 769. Upon finally being nearly cornered
in a parking lot, the driver hit multiple police cruisers in his
attempt to escape, and in making contact with the last cruiser,
the driver’s “tires started spinning, and his car was rocking
back and forth, indicating that Rickard was using the accelera-
tor even though his bumper was flush against a police cruiser.”
Id. at 770 (quotation and citation omitted). It was at this point
that the officers in pursuit decided to fire upon the driver,
which the Supreme Court determined was reasonable given the
immediate danger posed by the driver’s conduct to others dur-
ing his chaotic flight. Id. at 777.
The underlying circumstances in Mullenix v. Luna, 577
U.S. 7 (2015) (per curiam), are also inapposite, particularly
given the explicitly threatening nature of the driver’s actions.
In Mullenix, an individual with an outstanding arrest warrant
fled in his vehicle when an officer attempted to apprehend him
at a drive-in restaurant. 577 U.S. at 8. The driver subsequently
“led the officers on an 18–minute chase at speeds between 85
and 110 miles per hour.” Id. Moreover, and critically for the
purposes of this discussion, “[t]wice during the chase, Leija
called the Tulia Police dispatcher, claiming to have a gun and
threatening to shoot at police officers if they did not abandon
their pursuit. The dispatcher relayed Leija’s threats, together
with a report that Leija might be intoxicated, to all concerned
officers.” Id. Eventually, an officer stationed on an overpass
shot at the driver’s vehicle as it approached in an attempt to
disable the vehicle, but the officer’s bullets ended up striking
and killing the driver. Id. at 9. In finding that the officer was
entitled to qualified immunity, the Supreme Court distin-
guished the facts at issue from cases like Lytle in which the
record was equivocal as to whether an officer was in harm’s
16
way at the time of the shooting, finding that Lytle “does not
clearly dictate the conclusion that Mullenix was unjustified in
perceiving grave danger and responding accordingly, given
that Leija was speeding towards a confrontation with officers
he had threatened to kill.” Id. at 17. There is no indication in
the record before us that Jefferson was armed or had issued
threats to any of the officers on the scene.
The District Court, in its opinion, relied, in part, on this
Court’s decision in Bland v. City of Newark to support the as-
sertion that officers using deadly force during car chases do not
violate the Fourth Amendment or are entitled to qualified im-
munity. 900 F.3d 77 (3d Cir. 2018); App. 9. However, the facts
in Bland are distinguishable from the facts here, and our Court
neatly outlined the series of facts that supported finding the of-
ficers’ use of force reasonable:
Bland’s behavior threatened the
safety of the officers, as well as the
public at large. Before shots were
fired at Lincoln Park, Bland drove
at high speeds, disregarded traffic
signals, drove the wrong way
down a one-way street, collided
with two occupied police vehicles,
and failed to comply with orders to
surrender. As the gunfire erupted,
he repeatedly attempted to flee
from police and state troopers, in-
cluding by trying to drive with of-
ficers standing in close proximity
to the [vehicle]. And he engaged
in all of this behavior in a vehicle
that had been reportedly taken at
gunpoint a few hours earlier.
17
Bland, 900 F.3d at 84. Moreover, “at least one innocent civil-
ian suffered harm by his flight when a state police car struck
an occupied vehicle during the final leg of the pursuit.” Id. at
86. The officers used deadly force only during times in which
the vehicle was no longer moving. Id. at 81–82. The officers
also contended “that Bland drove aggressively at [them] as he
attempted to flee,” and “all parties agreed that officers were
standing less than 10 feet from the [vehicle] as Bland extricated
it from the two vehicles.” Id. at 81 n.3. Almost all the officers
that shot Bland had witnessed these events, and the few who
did not, at the very least, had reason to believe he was armed.
See id. at 85–87.
Most notably, “[a]fter the crash, Bland threatened to kill
the officers, and the record provides no evidence that he at-
tempted to surrender at any time.” Id. at 86. Two officers also
testified that they fired their weapons because Bland not only
threatened to kill them but also refused to show his hands and
stop moving. Id. at 81. Another officer asserted that he fired
after observing Bland making evasive movements inside the
vehicle as the other officers fired their weapons. Id. In other
words, there was a concern that Bland was armed, he then re-
fused to show his hands, and he threatened to kill the police.
Whereas here, Officer Lias did not witness or know about
any similar facts before using deadly force against Jefferson.
Lias did not wait until Jefferson’s vehicle was stationary to fire
his weapon. Lias also had no reason to believe Jefferson was
armed, and he was working only with the knowledge that Jef-
ferson was possibly driving a stolen vehicle. App. 359–
60. Furthermore, video footage makes clear that neither Of-
ficer Lias nor anyone else was in danger of being struck by
Jefferson as he was passing him. App. 388. Therefore, the
only real similarity between these two cases is that they both
involved vehicles. But that is where the comparison ends.
Where the officers in Bland—who shot Bland after he threat-
ened to kill the officers while they were within ten feet of the
vehicle that he had only just been dangerously operating—
18
acted reasonably, Officer Lias—who shot Jefferson while his
vehicle was passing him knowing only that the vehicle might
be stolen—did not.
Bland both threatened officers with deadly force and
tried to use his vehicle as a deadly weapon. Jefferson did nei-
ther. The dissimilarities between Bland and Jefferson empha-
size that it is reasonable to open fire on a suspect fleeing in a
motor vehicle only in a narrow set of circumstances, a set under
which the circumstances involving Officer Lias do not fall.
None of the Supreme Court cases cited by the District
Court, then, disturb the “robust consensus” of cases decided
by our sister circuits, let alone our own precedent, in clearly
establishing that an otherwise non-threatening individual in
engaged in vehicular flight is entitled to be free from being
subjected to deadly force if it is unreasonable for an officer to
believe his or others’ lives are in immediate jeopardy from
their actions. As such a right is clearly established, and be-
cause a jury may conclude that Officer Lias’s decision to
shoot Jefferson was not objectively reasonable, Officer Lias is
not entitled to qualified immunity.5
C. Heck v. Humphrey does not bar Jefferson’s
claims
Finally, Lias argues that Jefferson’s claims are barred
by Heck v. Humphrey, 512 U.S. 477 (1994). There, the Su-
preme Court held that a § 1983 action is barred if “a judgment
in favor of the plaintiff would necessarily imply the invalidity
of [a prior] conviction or sentence.” Heck, 512 U.S. at 487.
The conviction at issue here is second-degree eluding under
N.J. Stat. Ann. § 2C:29-2(b), to which Jefferson pled guilty. A
5
As noted in our discussion of the standard governing Fourth
Amendment excessive force claims, a jury may conclude that
Officer Lias’s shooting was not “objectively reasonable.”
Thus, the first prong of the qualified immunity standard is also
satisfied.
19
person may be convicted under New Jersey’s eluding statute if
he (1) knowingly flees or attempts to evade police while driv-
ing on a street or highway; (2) after having received a signal
from the police officer indicating he should stop; and (3) cre-
ating a risk of death or injury to any person. Because “creating
a risk of death or injury to any person” is an essential element
of the conviction, Lias contends Jefferson’s excessive force
claim cannot proceed as Lias was justified in using deadly
force to prevent the risk from continuing.
Lias’s argument is unavailing for a number of reasons.
For one, as we have explained above, precedent in our Circuit
(and in accordance with opinions issued by our sister circuits)
establishes that the unbounded use of deadly force is not justi-
fied against an individual in flight simply whenever they have
precipitated risk to others. See Lytle, 560 F.3d at 415 (“Nearly
any suspect fleeing in a motor vehicle poses some threat of
harm to the public . . . the real inquiry is whether the fleeing
suspect posed such a threat that the use of deadly force was
justifiable.”). If an individual has engaged in risky flight, but
no longer is threatening to officers or the public, the use of
deadly force against the individual may no longer be reasona-
ble. The analysis as to whether the use of deadly force to halt
a suspect’s escape is “objectively reasonable” depends on the
resolution of the kind of intensive, multi-factor analysis artic-
ulated by Graham and our subsequent Fourth Amendment ex-
cessive force precedent.
For another, we have declined to apply Heck to bar
Fourth Amendment excessive force claims under § 1983 when
we have found that the quantum of force used may have been
disproportionate to the conduct implicated by the underlying
conviction, even in cases involving resisting arrest and assault-
ing officers. See, e.g., Nelson v. Jashurek, 109 F.3d 142, 145
(3d Cir. 1997) (holding Heck did not foreclose excessive force
claim, noting that “the fact that Jashurek was justified in using
‘substantial force’ to arrest Nelson does not mean that he was
justified in using an excessive amount of force and thus does
20
not mean that his actions in effectuating the arrest necessarily
were objectively reasonable”); Lora-Pena v. FBI, 529 F.3d
503, 506 (3d Cir. 2008) (per curiam) (also declining to apply
Heck to bar an excessive force claim, noting “Lora–Pena’s
convictions for resisting arrest and assaulting officers would
not be inconsistent with a holding that the officers, during a
lawful arrest, used excessive (or unlawful) force in response to
his own unlawful actions.”). Consequently, Lias’s reliance
upon Heck to defeat Jefferson’s excessive force claim is mis-
guided.
D. Jefferson’s Monell claim will be reinstated
Finally, the District Court determined that Jefferson’s
Monell failure to train claim against the City of Elizabeth failed
as a matter of law because he could not demonstrate any un-
derlying constitutional violation. See Mulholland v. Gov’t Cty.
of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013) (noting “[i]t is
well-settled that, if there is no violation in the first place, there
can be no derivative municipal claim” based on Monell).
Given our contrary conclusion that Jefferson may be able to
make out a Fourth Amendment excessive force claim against
Lias, however, we will reverse the District Court’s ruling on
Jefferson’s Monell claim and request that the District Court an-
alyze it on the merits in the first instance.
III. CONCLUSION
For the foregoing reasons, we will vacate the District
Court’s grant of Lias’s motion for summary judgment and re-
mand this case for further consideration consistent with this
opinion.
21
MCKEE, Circuit Judge, with whom Judges RESTREPO and
FUENTES join, concurring.
I join the Court’s opinion in its entirety and agree that
we must vacate the District Court’s grant of summary
judgment and remand for the reasons my colleagues explain. I
write separately because I think it is important to explain that
the deference to law enforcement that consistently results in
qualified immunity in excessive force cases is inconsistent
with the vast amount of research in such cases as well as the
evolving national consensus of law enforcement organizations.
In Kisela v. Hughes, the Supreme Court stated:
The “reasonableness” of a particular use of force
must be judged from the perspective of a
reasonable officer on the scene, rather than with
the 20/20 vision of hindsight. [And] the calculus
of reasonableness must embody allowance for
the fact that police officers are often forced to
make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a
particular situation.1
In response, Justice Sotomayor observed:
[T]his Court routinely displays an unflinching
willingness “to summarily reverse courts for
wrongly denying officers the protection of
qualified immunity” but “rarely intervenes
where courts wrongly afford officers the benefit
of qualified immunity in these same cases.” . . .
[The Majority] tells officers that they can shoot
first and think later, and it tells the public that
palpably unreasonable conduct will go
unpunished.2
Research as well as policies mandated by police
agencies themselves support Justice Sotomayor’s observation.
In fact, given numerous studies and policies of leading law
1
-- U.S. --, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018)
(per curiam) (citation omitted) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)).
2
Id. at 1162 (Sotomayor, J., dissenting) (citations omitted).
enforcement organizations in the United States, including the
International Association of Chiefs of Police (IACP), there is a
growing consensus that it is simply unreasonable for officers
to shoot at fleeing suspects. It stands to reason that police
agencies like the IACP are much more aware than judges of
the need to respect an individual officer’s “heat of the moment”
decision. Accordingly, as I will explain, given these studies
and policies, it should by now be crystal clear that, except for
a narrow set of circumstances that police agencies have already
carefully defined, it is never reasonable for a police officer to
open fire on a suspect fleeing in a motor vehicle. Far from
being reasonable, it will almost always be reckless. And police
recognize as much.
I.
As my colleagues explain, we apply a multi-factor test
to determine whether an officer’s use of force is reasonable.3
We must determine “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.”4 Of course, an officer will never face
circumstances identical to those she or other officers have
faced before. Accordingly, reasonableness is a fluid concept
that must be assessed in context with all of the circumstances
in a given case.5
However, in cases involving officers shooting at
suspects fleeing in motor vehicles, one fact will be constant:
opening fire creates a risk that police agencies themselves
generally agree is almost always unreasonable; and it is a risk
that is both unnecessary and avoidable. The chance of
successfully apprehending the suspect in this manner is low
and the risk to bystanders, including other police officers, is
quite high. The low probability of hitting a moving target will
therefore never justify the attendant risk, except in a narrow set
3
Maj. Op. at 6–7.
4
Graham v. Connor, 490 U.S. 386, 397 (1989).
5
Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999)
(“[R]easonableness should be sensitive to all of the factors
bearing on the officer’s use of force.”).
2
of circumstances, which police agencies have already carefully
defined.
A.
Firearms are, of course, inherently lethal. Indeed,
lethality is their very purpose. For reasons that should be
readily apparent, the risk of lethality is especially high when
an officer shoots at a fleeing suspect. Because of this high risk,
a consensus has emerged among law enforcement agencies and
police experts that is in tension with qualified immunity
jurisprudence. This consensus is that, except for a very limited
and identified set of circumstances, it is never reasonable for a
police officer to shoot at a fleeing suspect. Courts need look
no further than the National Consensus Policy and Discussion
Paper on Use of Force to appreciate this. That is a model
policy published by eleven “of the most significant law
enforcement leadership and labor organizations in the United
States,” including the IACP and the Fraternal Order of Police
(see footnote for a complete list of all eleven organizations).6
This model policy bars police from firing at a suspect fleeing
in a moving vehicle in almost all situations.7 The narrow
6
INT’L ASS’N OF CHIEFS OF POLICE ET AL., NATIONAL
CONSENSUS POLICY AND DISCUSSION PAPER ON USE OF
FORCE 1 (July 2020), available at
https://www.theiacp.org/sites/default/files/2020-
07/National_Consensus_Policy_On_Use_Of_Force%200710
2020%20v3.pdf. The eleven organizations include the
Association of State Criminal Investigative Agencies,
Commission on Accreditation for Law Enforcement
Agencies, Fraternal Order of Police, Federal Law
Enforcement Officers Association, International Association
of Chiefs of Police, Hispanic American Police Command
Officers Association, International Association of Directors
of Law Enforcement, National Association of Police
Organizations, National Association of Women Law
Enforcement Executives, National Organization of Black Law
Enforcement Executives, and National Tactical Officers
Association. Id. at 16.
7
Id. at 13; see also John P. Gross, Unguided Missiles: Why
the Supreme Court Should Prohibit Police Officers from
Shooting at Moving Vehicles, 164 U. PA. L. REV. ONLINE
3
circumstances in which these organizations permit officers to
even “consider” shooting at a moving vehicle are limited to
“when ‘a person in the vehicle is immediately threatening the
officer or another person with deadly force by means other than
the vehicle,’ or when the vehicle is intentionally being used as
a deadly weapon and ‘all other reasonable means of defense
have been exhausted.’”8
In developing this type of policy over the years, law
enforcement agencies and police experts considered numerous
factors.9 Although many of these underly the jurisprudence in
this area, most are not considered by court decisions dealing
with qualified immunity. They include the fact that officers
need to react quickly in emotional situations; police firearms
usually cannot penetrate a vehicle’s body, tires, or safety glass;
ricocheting bullets can injure or kill bystanders; and vehicles
can “continue under [their] own power or momentum for some
distance,” threatening those in the area even in the unlikely
event that the officer actually hits the driver.10
Ironically, and very significantly, the Elizabeth Police
Department, Officer Lias’s own department, provides a link on
its website to the guidelines of the New Jersey Attorney
General.11 That website includes a prohibition similar to the
aforementioned model policy, forbidding officers from firing
at a driver or vehicle’s occupant unless there is “an imminent
135, 139 (2016) (citing INT’L ASS’N OF CHIEFS OF POLICE,
MODEL POLICY: USE OF FORCE 1 (Feb. 2006) [hereinafter
2006 Model Policy],
https://www.documentcloud.org/documents/2303826-
useofforcepolicy.html).
8
INT’L ASSOC. OF CHIEFS OF POLICE ET AL., supra note 6, at
14 (emphasis added).
9
See, e.g., 2006 Model Policy, supra note 7, at 1.
10
John P. Gross, supra note 7, at 139–40 (citing 2006 Model
Policy, supra note 7, at 1).
11
ELIZABETH POLICE DEP’T, ABOUT THE ELIZABETH POLICE
DEPARTMENT, https://www.elizabethnj.org/160/About (click
AG Guidelines).
4
danger of death or serious bodily harm” and “no other means
are available.”12
It is realistic, practical, and reasonable to expect Officer
Lias and police officers generally to be aware of the policy
pronouncements of their own police departments. This is
especially true given that qualified immunity jurisprudence
currently rests on the faulty assumption that police are not only
sufficiently informed about the maybe hundreds or even
thousands of applicable court decisions, but also able to
“assess, before acting, whether [these] prior court decisions
clearly establish that their conduct would violate the
Constitution.”13 This is little more than myth. Even a cursory
examination would lead one to conclude that such an
expectation is unrealistic, impractical, and unreasonable.14
12
ATTORNEY GENERAL’S USE OF FORCE POLICY 5–6 (2000),
https://www.nj.gov/oag/dcj/agguide/useofforce2001.pdf
(emphasis added).
13
Joanna C. Schwartz, Qualified Immunity’s Boldest Lie, 88
U. CH. L. R. 605, 619 (2021).
14
Although beyond the scope of this opinion, this is an
additional problem with qualified immunity jurisprudence:
[E]ven if law enforcement agencies made more
of an effort to educate their officers about court
decisions analyzing the constitutional limits of
force, the expectations of notice and reliance
baked into qualified immunity doctrine would
be obviously unrealistic. There could never be
sufficient time to train officers about all the
court cases that might clearly establish the law.
And even if officers were trained about the facts
and holdings of some portion of these cases,
there is no reason to believe that officers would
analogize or distinguish situations rapidly
unfolding before them to the court decisions
they once studied.
There is a growing consensus among courts,
scholars, and advocates across the ideological
spectrum that qualified immunity doctrine is
5
Yet, if we are to assume that police can stay abreast of the
minutia of the law, then they certainly should be expected to
know the policies of their own department as well as generally
accepted police best practices.
Not surprisingly, given the inaccuracy and danger
endemic to shooting at moving vehicles, discussed in more
detail below, some police departments have outright banned
the practice. The New York City Police Department was likely
one of the first to do so. It disallowed firing at a moving
vehicle nearly half a century ago in 1972.15 Since then, many
other departments have enacted similar restrictions.16 The
Philadelphia Police Department policy, for example, prohibits
the practice and explains why the prohibition is consistent with
sound (i.e., “reasonable”) police practices. Thus, the policy
states that firing at a moving vehicle is prohibited for the
following reasons:
• To avoid unnecessarily endangering innocent
persons, both when inside the vehicle and in
the vicinity.
• Bullets fired at a moving vehicle are
extremely unlikely to disable or stop the
vehicle.
• Disabling the driver of a moving vehicle
creates unpredictable circumstances that may
cause the vehicle to crash and injure other
officers or innocent bystanders.
legally unsound, unnecessary to shield
government officials from the costs and burdens
of litigation, and destructive to police
accountability efforts. . . .
Id. at 605. See Joanna C. Schwartz, Qualified
Immunity’s Boldest Lie, 88 U. CH. L. R. 605 (2021) for
more on the unreasonableness of this assumption.
15
Sharon R. Fairley, The Police Encounter with a Fleeing
Motorist: Dilemma or Debacle, 52 U.C. DAVIS L. REV.
ONLINE 155, 193 (citing Jon Swaine, Jamiles Lartey & Oliver
Laughland, Moving Targets, GUARDIAN (Sept. 1, 2015, 9:42
AM), https://www.theguardian.com/us-
news/2015/sep/01/moving-targets-police-shootings-vehicles-
the-counted).
16
Id.
6
• Moving to cover in order to gain and maintain
a superior tactical advantage maximizes
officer and public safety while minimizing the
need for deadly or potentially deadly force.17
Similarly, because of the high risk associated with
shooting at a moving vehicle, the Chicago Police Department
requires its officers to “move out of the vehicle’s path” rather
than shoot, even if the vehicle is headed right towards the
officer.18 The model policy on the use of force for police,
mentioned above, similarly advises against discharging
firearms at moving vehicles.19
These policies and pronouncements illustrate how
police departments across this country have essentially come
to a consensus that shooting at fleeing suspects in vehicles is
never reasonable and will always be very reckless, except for
the rarest of circumstances specifically noted in those policies.
The reasonableness standard by which we judge an officer’s
use of force should—at the very least—reflect and consider the
stringency of these policies—promulgated by experts in
policing and not by courts.20
B.
17PHILA. POLICE DEP’T, USE OF FORCE–INVOLVING THE
DISCHARGE OF FIREARMS 7 (Sept. 18, 2015),
https://www.phillypolice.com/assets/directives/D10.1.pdf.
18
Fairley, supra note 15, at 194 (quoting CHI. POLICE DEP’T,
GENERAL ORDER 03-02-03; DEADLY FORCE 13 (Oct. 1,
2002), https://www.chicagocopa.org/wp-
content/uploads/2017/10/Use-of-Force-Policy-Report-
Final.pdf).
19
2006 Model Policy, supra note 7, at 1; see also DEP’T OF
JUST., FEDERAL REPORTS ON POLICE KILLINGS: FERGUSON,
CLEVELAND, BALTIMORE, AND CHICAGO 295 (2017).
20
See BERNARD D. ROSTKER ET AL., RAND CORP.,
EVALUATION OF THE NEW YORK CITY POLICE DEPARTMENT
FIREARM TRAINING AND FIREARM-DISCHARGE REVIEW
PROCESS xiv–xv (2008) (“[D]epartment guidelines for the use
of deadly physical force are more stringent than the standards
set by the Graham case . . . .”).
7
Examining the “hit rates” of police officers supports the
reasoning behind these policies and may well explain why
police organizations have adopted them. Inquiries into
reasonableness of force should consider the low rates of
officers hitting their targets. Yet, even though police policies
appear to consider this, courts do not even mention it.
Despite most police officers receiving weapons
training,21 research shows that they are much more likely to
miss their targets than to hit them.22 Indeed, studies
considering overall hit rates have consistently shown that
police officers rarely achieve a 50% shooting-accuracy rate.23
In a study examining the accuracy of 149 officer-involved
shootings in the Dallas Police Department between 2003 and
2017, only 35% of rounds fired hit their targets.24 Two
conclusions follow from these and similar studies. First, the
fleeing suspect will often not be apprehended, and others
(including other officers) are placed in danger.25 Second, if the
21
See, e.g., ROSTKER ET AL., supra note 20, at 17–23
(providing an overview of the type of training the New York
Police Department provides).
22
See Christopher M. Donner & Nicole Popovich, Hitting (or
Missing) the Mark: An Examination of Police Shooting
Accuracy in Officer-Involved Shooting Incidents, 42
POLICING: AN INT’L J. 474, 475 (2019); ROSTKER ET AL.,
supra note 20, at 14; Michael D. White, Hitting the Target (or
Not): Comparing Characteristics of Fatal, Injurious, and
Noninjurious Police Shootings, 9 POLICE Q. 303, 304 (2006).
23
Donner & Popovich, supra note 22, at 475–76 (“A study
conducted on shooting accuracy in 13 large American police
departments during the 1970s and 1980s found that between
22 and 42 percent of rounds fired by officers hit their
intended target. Several reports have also focused on the
largest US police department, New York City. OIS data
revealed hit rates of 26, 31 and 23 percent in 1987, 1988 and
1990, respectively. Data collected between 1999 and 2000
revealed a 15 percent hit rate among officers. Between 1998
and 2006, the average hit rate was 18 percent.” (citations
omitted)).
24
Id. at 481.
25
DEP’T OF JUST., supra note 19, at 294–95 (detailing
Department of Justice reports on police killings).
8
suspect is fleeing in a car, and in the unlikely event that the
officer does succeed in hitting the suspect, the officer creates
an even deadlier risk to those nearby. The vehicle will be
transformed into an out-of-control, 4,000-pound26 “unguided
missile” careening through the street.27 It should therefore not
be surprising that a Department of Justice report concludes that
shooting at moving vehicles “creates greater risks than it
eliminates.”28 It is also no surprise that police agencies limit
this use of deadly force to a very narrow set of carefully
delineated circumstances discussed above, and then, only if
“all other reasonable means of defense have been exhausted.”29
These studies reflecting a low level of accuracy are not
outliers. Hit rates are consistently low among police
departments.30 As a more recent example, in 2019, officers in
the Los Angeles Police Department hit their targets an
26
The average new vehicle weight for model year 2019 was
4,156 pounds. ENV’T PROT. AGENCY, THE 2020 EPA
AUTOMOTIVE TRENDS REPORT 18 (2021), available at
https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P1010U68.pdf
.
27
Fairley, supra note 15, at 194 (quoting Wesley Lowery et
al., Police Have Killed Nearly 200 People Who Were in
Moving Vehicles Since 2015, Including 15-year-old Jordan
Edwards, WASH. POST (May 3, 2017),
https://www.washingtonpost.com/news/post-
nation/wp/2017/05/03/police-have-killed-nearly-200-people-
who-were-in-moving-vehicles-since-2015-including-15-year-
old-jordan-edwards/). See also INT’L ASSOC. OF CHIEFS OF
POLICE ET AL., supra note 6, at 14 (“[S]hould the driver be
wounded or killed by shots fired, the vehicle might proceed
out of control and could become a serious threat to officers
and others in the area.”).
28
DEP’T OF JUST., supra note 19, at 294–95 (detailing
Department of Justice reports on police killings).
29
Fairley, supra note 15, at 196.
30
See White, supra note 22, at 307 (“Research has
consistently shown that although there is substantial variation
across police departments, hit rates typically dip well below
50%.”).
9
underwhelming 28% of the time.31 Between 1998 and 2006,
the hit rate for the New York City Police Department averaged
an even less impressive 18%.32 To further compound this
problem, police are even more likely to miss when their targets
are moving.33 This should not surprise anyone as common
sense would suggest as much. Yet, in most cases involving
qualified immunity and unnecessary force, the suspect will be
moving away from the officer and doing so at considerable
speed. One does not need to master Newton’s laws of motion
or probability theory to appreciate that all of these factors
combine to greatly reduce the chances of apprehending a
fleeing suspect by shooting at them. While the chances of a
successful apprehension are extremely small, the concomitant
risk to everyone in the vicinity, including other officers, is
exceedingly high. Yet, the jurisprudence of qualified
immunity in such cases consistently fails to address this reality.
A reality which police are well aware of, have grappled with,
and have taken steps to address.
C.
31
Michel R. Moore, Los Angeles Police Department Use of
Force Year-End Review, L.A. POLICE DEP’T 164 (2019),
http://lapd-
assets.lapdonline.org/assets/pdf/2019_uof_review.pdf. This
statistic contemplates officer-involved shooting incidents,
which includes situations in which a suspect first “fired at an
officer or [third] party,” “the suspect had a firearm in hand or
in a position to fire (but did not fire),” a suspect’s “firearm
was present but not drawn,” the suspect had no firearm, or
“the suspect [was] armed with [a] weapon other than [a]
firearm.” Id. at 147.
32
Donner & Popovich, supra note 22, at 476.
33
See BRIAN R. JOHNSON, CRUCIAL ELEMENTS IN FIREARMS
TRAINING, 39 (2007). Other factors that impact police
shooting accuracy include whether the shooting occurs at
nighttime and whether the officer is shooting at a non-white
suspect. Donner & Popovich, supra note 22, at 481. There is
an entire field of shooter bias that finds police are more likely
to shoot non-white suspects, whether armed or disarmed, than
white suspects. See R. Richard Banks et al., Discrimination
and Implicit Bias in a Racially Unequal Society, 94 CAL. L.
REV. 1169, 1180 (2006).
10
It thus follows that the risk of danger and average hit
rates associated with shooting at fleeing suspects should be part
of the calculus when determining the reasonableness of an
officer’s use of force. It is simply no answer to this concern to
merely defer to the officer on the scene because of the need for
“heat of the moment” decisions. Surely, the police agencies
that have adopted the policies discussed above are much more
aware than judges of the need to respect an individual officer’s
“heat of the moment” decision.34 The circumstances that
justify the risk are encapsulated in these agencies’ applicable
policies.35 Therefore, when an officer discharges a firearm at
a suspect fleeing in a motor vehicle, as Officer Lias did here,
the law needs to recognize that except in the rarest of
circumstances (which have been delineated by police experts)
it will be an unreasonable use of force to shoot at the fleeing
suspect.36
Before concluding, it is worth noting that my
colleagues’ explanation of the dissimilarities between the
circumstances here and those in Bland v. City of Newark
further illustrates why so many researchers and law
enforcement organizations now conclude that, except in very
narrow circumstances not present here, it will always be
34
As mentioned above, many police agencies have adopted
policies restricting officers use of force against fleeing
suspects. See Fairley, supra note 15, at 193. Because of the
extensive research in this area and the number of carefully
thought-out policies of police and law enforcement agencies,
the absence of such a policy in a given jurisdiction may well
have implications for municipal liability under Monell v.
Dep’t of Soc. Serv., 436 U.S. 658 (1978).
35
See, e.g., INT’L ASSOC. OF CHIEFS OF POLICE ET AL., supra
note 6, at 14 (“Officers should consider this use of deadly
force only when ‘a person in the vehicle is immediately
threatening the officer or another person with deadly force by
means other than the vehicle,’ or when the vehicle is
intentionally being used as a deadly weapon and ‘all other
reasonable means of defense have been exhausted (or are not
present or practical).’”).
36
None of the circumstances which police agencies have
determined justify use of such force are present here.
11
unreasonable for police to shoot at a fleeing suspect. 37 In
Bland, in discussing the first encounter with the fleeing
suspect, we noted: “During this encounter, the six state
troopers fired a total of 28 shots, none of which hit Bland.”38
II. Conclusion
It is both understandable and reasonable that courts
should give great deference to the need for split-second
decisions in a qualified immunity analysis arising from
allegations of excessive force. It is neither understandable nor
reasonable for the law to continue to turn a blind eye to the fact
that police agencies themselves have condemned the use of
deadly force in certain situations. Nor is it understandable or
reasonable for the law to continue to reward a police officer
who ignores policy (or the risk inherent in discharging a
firearm) with the cloak of qualified immunity. The law’s
failure to consider police agencies’ own disavowal of deadly
force in certain situations, while purporting to defer to the
realities and needs of law enforcement, has birthed a cruel and
unjust irony.
As Justice Sotomayor so aptly wrote, the approach to
qualified immunity has become so one-sided that it has
“transform[ed] the doctrine into an absolute shield for law
enforcement officers, gutting the deterrent effect of the Fourth
Amendment.”39 The paradox that has evolved is that the
perceived need to defer to the split-second decisions of trained
professionals that is endemic to the jurisprudence in this area
has failed to recognize the collective judgments of those very
professionals and their administrative and governing agencies.
I can only hope that this divergence will soon come to
an end, so that the considered judgment of police agencies and
the law of deadly force can coalesce into a more realistic legal
framework: one that would allow those who deserve redress to
get it without having to penetrate the practically impenetrable
wall of qualified immunity.
37
See Maj. Op. at 17–19 (discussing Bland v. City of Newark,
900 F.3d 77 (3d Cir. 2018)).
38
900 F.3d at 81.
39
Kisela, 138 S.Ct. at 1162 (Sotomayor, J., dissenting).
12