Legal implications of an OIS under hypoglycemic shock

Does this cop deserve a break in this bizarre officer-involved shooting?


Editor’s Note:

Editor’s Note: We at PoliceOne would like to offer our sincere thanks to Wayne Schmidt, executive director of Americans for Effective Law Enforcement, for alerting us to this case.

Here’s a bizarre officer-involved shooting — and a recent court decision associated with it — that should stir some lively controversy within the law enforcement community. The officer who pulled the trigger has gotten a break from the U.S. Court of Appeals for the 8th circuit. But is it a break he should have?

See what you think.

The cop’s real name is not critical to this discussion. We’ll call him JR. At the time of the shooting he was employed by a major municipal department in the Midwest.

These are the highly unusual circumstances, principally as reprised in the appellate court’s decision earlier this year. You can read the decision in full here.

Incident Summary
On a Monday evening in September four years ago, JR responded to a murder scene in a high-crime area as an on-duty ride-along who was interested in earning an assignment to the homicide squad. JR suffers from Type I diabetes and throughout that day he had had “difficulty controlling his blood sugar level.”

While at the scene, he “experienced intense hunger” and asked a fellow officer to take him to a nearby gas station minimart for food. During the drive, he “did not respond to questions or engage in conversation.” At the store, he consumed a donut and soda.

Dressed in plainclothes and with his police ID displayed on a lanyard, JR “then exited the convenience store and fired his service weapon until it was empty,” the court said. That was 16 rounds. Nine bullets hit a food delivery truck that was backing toward the store as JR walked out. One penetrated the truck’s door and hit the driver, David Gardner, in the side. Gardner had committed no offense and was shot completely by surprise.

After firing the fusillade, JR holstered the gun and “left the premises.” He was found by another officer walking down the street about a quarter-mile away, his cell phone to his ear. The officer said JR “appeared disoriented.”

Not surprisingly, Gardner filed a Section 1983 lawsuit in U.S. District Court under the Civil Rights Act, claiming that his 4th Amendment right to be free from an “unreasonable seizure” had been violated. JR was named, of course, along with a laundry list of other defendants, including members of the municipality’s board of police commissioners.

Legal Machinations
In his defense, JR claimed that at the time of the shooting he was experiencing a hypoglycemic (low blood sugar) reaction as a result of his diabetes. In a deposition, his doctor testified that this phenomenon “causes the brain to stop functioning properly and may cause an individual to become confused and unaware of his surroundings.”

JR himself stated that when he experiences such reactions, he “cannot distinguish between reality and fiction.” He said he could recall firing his service weapon while at the gas station, but described his condition at that time as a “dream-like state.”

His defense argued that to violate the 4th Amendment, “an officer must subjectively intend that his action will effect a seizure.” Because of his condition, JR maintained, he “could not have formed an intent” to fire his weapon, “much less to shoot Gardner.” He said he “did not intend to shoot at anything or anyone” and “did not realize anyone had been shot until well after the shooting occurred.”

His attorney moved for summary judgment from the court, asserting, among other things, that JR was entitled to qualified immunity. That’s the federal doctrine that shields government officials from liability for civil damages so long as their duty-related actions do not violate laws or constitutional rights that are so “clearly established” that “a reasonable official would have known that his actions were unlawful.”

Last year, District Court Judge Greg Kays rejected the motion — and JR’s arguments. JR’s “subjective intent is irrelevant to whether a seizure occurred,” Kays ruled. “The question is not what, if anything, [JR] was thinking during this incident.” A constitutional violation occurred because his “gun did not accidentally fall out of its holster and discharge.” He drew it “and deliberately fired it,” violating clearly established law.

In short: No qualified immunity for Ofcr. JR.

JR appealed.

In its review, a three-judge panel of the Court of Appeals weighed the circumstances of the shooting and legal precedent. In its decision filed last June, the Court mentioned various prior cases that addressed the issue of “intent” as related to seizure.

In one case cited, a Supreme Court justice wrote that “No one would suggest that the 4th Amendment provides no protection against a police officer who is too drunk to act intentionally, yet who appears in uniform brandishing a weapon in a threatening manner.”

Yet in that case and others there was debate over the proper legal interpretation of the core terms “intent” and “seizure”... whether intent must be objective or subjective ...whether a seizure must involve a “willful” or “knowing” act... whether an “accidental” shooting can result in a seizure…whether what really matters is not what was in the officer’s mind but what was “conveyed to the person confronted” ...whether it’s even “practicable to conduct an inquiry into subjective intent” or if it’s “enough for a seizure that a person be stopped,” and so on.

Two Supreme Court cases in particular drew the appellate court’s attention: Brower v. County of Inyo, 489 U.S. 593 (1989) and Brendlin v. California, 551 U.S. 249 (2007).

In the end, “given [the] legal landscape,” the Court of Appeals ruled that the District Court had erred in denying JR’s motion for summary judgment. “We think it was not clearly established” at the time of the shooting that an officer “could effect a seizure…without subjectively intending to do so,” the Court said.

There was no rule of conduct that JR was “on clear notice” to meet, “including conduct that was a foreseeable consequence of his medical condition.” And “if the state of the law did not allow him reasonably to anticipate that his conduct may give rise to liability for damages,” then he “is entitled to qualified immunity.”

Thus the appellate court overturned the District Court’s decision and sent the case back “for further proceedings.” The District Court was instructed to “determine whether the evidence, viewed in the light most favorable to Gardner, would support a finding by a reasonable jury that [JR] subjectively intended to effect a seizure of Gardner by firing his weapon. If not, then [JR] is entitled to qualified immunity.”

That is, he’d be free of any civil liability for the unprovoked shooting, which reportedly has left Gardner suffering from PTSD and no longer able to drive a truck.

Judge Kays of the District Court has asked both sides to submit briefs supporting what they believe is an appropriate definition of the phrase “subjectively intended” in the context of Section 1983 litigation generally and, specifically, “where an officer is undergoing a hypoglycemic episode.”

Some observers predict that before it’s over, the case will land with the Supreme Court.

Looking Ahead
JR has resigned as an officer. “He was never arrested, never charged with a criminal offense, never fired,” David Gardner’s attorney, Michael L. Fortin, told PoliceOne.

While investigating the case, Fortin says he found evidence that JR had previously passed out twice on duty because of his medical condition, with fellow officers removing his sidearm from him each time.

“All we want is to have a trial,” says Fortin, who himself has a criminal justice degree. “We want a jury to hear the facts and make a decision.”

What is justice in a case like this? If you had the power of a judge or a juror, how would you resolve it?

About the author

Charles Remsberg co-founded the original Street Survival Seminar and the Street Survival Newsline, authored three of the best-selling law enforcement training textbooks, and helped produce numerous award-winning training videos. His nearly three decades of work earned him the prestigious O.W. Wilson Award for outstanding contributions to law enforcement and the American Police Hall of Fame Honor Award for distinguished achievement in public service.

Buy Charles Remsberg's latest book, Blood Lessons, which takes you inside more than 20 unforgettable confrontations where officers' lives are on the line.

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