Off-duty OIS case is an appellate court win for the good guys
The Seventh Circuit’s findings on an off-duty, officer-involved shooting are valuable and relevant to police officers in all jurisdictions
In the case of Horton v. Pobjecky – decided by the United States Court of Appeals for the Seventh Circuit on 2/28/18 – a unanimous three-judge federal appellate court exonerated a brave deputy who took decisive action in the face of grave and immediate danger.
On the evening of October 1, 2011, Frank Pobjecky, an unarmed, off-duty deputy sheriff dressed in plain clothes, made a pizza purchase at Marie’s Pizzeria in Rockford, Illinois.
As he was talking with the store manager, Vincent Tarara, and another employee, in a room adjacent to the main entrance, four men entered the store dressed in sweatshirts with hoods covering their heads.
Lamara Coates, the first to enter, held a revolver and immediately entered the room where Pobjecky and Tarara were, followed by Brandon Sago, another one of the robbers. Coates pointed his gun at each of them and demanded money.
Tarara verbally rejected the demand and immediately engaged Coates in a physical struggle. Meanwhile, Bellmon, the third robber, went for the cash register in the main lobby, while the fourth robber, Michael Sago, remained as a lookout at the front door.
During the struggle between Tarara and Coates, both men had their hands on Coates’ revolver. While the struggle was ongoing, Bellmon joined the melee. Michael Sago left his position at the front door and approached the location of the struggle, but did not intervene.
Tarara was able to gain control of Coates’ revolver and Deputy Pobjecky grabbed another handgun that was on Tarara’s person. Coates turned and headed for the exit. Pobjecky shot him in the back without a warning. Pobjecky then shot Brandon Sago as he headed for the exit and Bellmon in quick succession. He did not identify himself as a police officer or give any warning of his intention to fire.
The court described a video of Pobjecky’s shooting the final robber Michael Sago. The video disclosed that Michael Sago crawled past Pobjecky from behind in the direction of the front door. Pobjecky fired his first shot into Sago’s back, after he crawled past him. He subsequently shot Sago twice more in the back as he continued to crawl to the exit. Michael Sago was able to exit the store and died outside on the sidewalk.
Pobjecky locked the front door from the inside and waited until police arrived because he feared for his life. The entire incident from initial entry to the final shot took 36 seconds.
Pobjecky told Tarara to call 911 but he had trouble making the call. Another witness made the 911 call which was received about 7 minutes after Pobjecky locked the door. Paramedics arrived about 11 minutes after Michael Sago was shot.
Sago’s estate sued Deputy Pobjecky, the County Sheriff and Winnebago County, Illinois, pursuant to 42 U.S.C. §1983, alleging excessive force and lack of appropriate medical care. The Federal District Court dismissed the lawsuit and the Seventh Circuit Court of Appeals affirmed, finding that Deputy Pobjecky’s conduct was constitutional in all respects.
Valuable findings for LE officers
The Seventh Circuit’s findings are valuable and relevant to law enforcement officers in all jurisdictions.
- The court ruled that when an officer has probable cause (not absolute certainty) that a suspect poses a threat of serious physical harm by threatening the officer with a weapon, the officer may use deadly force in self-defense or defense of another.
- The court ruled that when an officer has probable cause that a suspect poses a threat of serious physical harm to an officer or others, an officer may use deadly force to prevent the escape of that suspect.
- The court set out the legal test as follows: “The test is objective reasonableness. A plaintiff must show the officer’s use of force was objectively excessive from the perspective of a reasonable officer on the scene under the totality of circumstances.”
- The court explained that the officer’s subjective state of mind is not relevant to the “objective test.” Instead, the court will examine the actual objective facts and circumstances known to the officer at the time of the shooting, including “pressures of time and duress, and the need to make split-second decisions under intense, dangerous, uncertain and rapidly changing circumstances.”
- The court stated that officers are not required to “use … the least or even a less deadly alternative so long as the use of deadly force is reasonable under [Garner and Graham].”
- The court ruled that once Deputy Pobjecky saw a handgun in the possession of Coates, it was reasonable for him to believe that all the other participants may likewise be armed. All the suspects were dressed in a manner that could conceal the presence of a firearm.
- The court ruled that it was immaterial that Michael Sago was later determined to be unarmed. He participated in an armed robbery and wore clothing that could conceal a firearm. The court found that he represented an imminent threat of death or serious injury to the officer and others.
- The court ruled that Michael Sago presented a serious threat to Deputy Pobjecky at the time Pobjecky shot him in the back while Sago was attempting to crawl out of the store. The court ruled that Pobjecky’s shooting of Sago was constitutionally justified on both self-defense and preventing escape grounds.
- The court explained, “Even if Michael had already crawled passed Pobjecky, it was still reasonable … to shoot him in the back to prevent escape. Moreover, the goals of self-defense and defense of others remained valid even after Michael crawled past Pobjecky because for all a reasonable officer could have known Michael could have turned and produced a gun in a flash.”
- The court ruled that Pobjecky was not required to warn Michael Sago before shooting him in the back because warnings are constitutionally required only if feasible. “Given the desperate circumstances Pobjecky faced, and the limited time he had, no reasonable juror could conclude he should have stopped to identify his office or warn the assailants.”
- The court refused to find against the deputy for failure to provide appropriate medical care. The court stated, “It was objectively reasonable for Pobjecky to stay inside the locked pizzeria awaiting help. It is objectively unreasonable to demand him to venture into the night with an empty gun, risking further onslaught, braving the hazards that Michael and the other assailants created to administer treatment to Michael.”
Even though off-duty Deputy Frank Pobjecky shot an unarmed robbery suspect in the back three times, the court correctly ruled that this shooting was constitutionally justified.