Eighth Circuit judges fail to comprehend threat rifle-bearing subject poses to police

Many federal judges are uninformed regarding the threat posed to officers by persons holding a firearm


Four years ago I wrote an article for PoliceOne that was highly critical of a Ninth Circuit Federal Court of Appeals decision in George v. Morris. [1] This case resulted in a 2-1 decision in which the majority judges ruled against law enforcement officers and failed to comprehend the danger they faced from a subject holding a firearm and refusing to drop it. [2] Now federal judges from the Eighth Circuit, citing George as persuasive authority, have compounded the Ninth Circuit’s uninformed mistake in a new decision titled Cole v. Hutchins. [3] 

George v. Morris

In George, officers from the Santa Barbara (California) Sherriff’s Office responded to a call from the subject’s wife that her husband had a gun and was distraught because of serious illness. Officers found him in the back yard holding a semi-automatic firearm. An officer told him to drop the gun, but George refused. George was holding the gun pointed at the ground. An officer said he raised the gun and pointed it directly at him. Three officers fired at George and he was killed. A firearm containing hollow-point bullets was recovered next to his body.

Scientific evidence establishes beyond question that an officer who waits for a gun to be pointed at him or her can be shot before they can react. (Photo/Pixabay)
Scientific evidence establishes beyond question that an officer who waits for a gun to be pointed at him or her can be shot before they can react. (Photo/Pixabay)

The lower court in the lawsuit that followed refused to grant the officers summary judgment based on qualified immunity. The judge, following pre-trial procedural rules, declined to accept officer testimony that George raised and pointed the gun before they shot him. Instead, the court accepted as true George’s wife’s claim that George was too weak to raise the pistol from his side. [4] 

The lower court ruled that if the officers shot a man holding a gun pointed toward the ground after telling him to drop it, they violated clearly established Fourth Amendment rights. The two-judge appellate majority agreed with the lower court and ruled, “If the deputies indeed shot the sixty-four old decedent without objective provocation … with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment.” I said in my 2016 article that the Ninth Circuit judges were wrong and cited a scientific study, titled “Reasonableness and Reaction Time” (Blair Reaction Time Study) to prove my point. [5] 

Blair Reaction Time Study

The Blair Reaction Time Study was conducted by Dr. J. Pete Blair, executive director of the Advanced Law Enforcement Rapid Response Training (ALERRT) Center and criminal justice professor at Texas State University. The study involved 30 college students who played the role of suspects and 24 experienced police SWAT team members. Each SWAT team officer was told they were responding to a man with a gun call and to individually approach 10 different “suspects,” one at a time, who were placed in separate areas of a building. They were told to approach each suspect with their Glock training pistols (which fired marking cartridges) up and pointed at each suspect from a distance of 10 feet. Each suspect had a similar pistol either pointed at their own head or down at their side pointed at the floor. The suspects were told to shoot the officer after being ordered to drop the gun. [6] The officers were told to shoot as soon as each suspect made a move to shoot at them.

The suspects with the guns at their sides were able to raise and fire at the officers in an average of .36 of a second.  The officers were able to fire their up and pointed pistols in an average of .38 of a second. The suspects with guns at their heads were able to lower, point and fire in an average of .38 of a second. Officers fired back in .38 of a second. The study proves that once the suspects started movement with the gun from down at their sides or away from their heads, the officers would be shot, regardless of their attempts to return fire. [7] This raises the rhetorical question, were the officers in immediate danger of death or serious bodily harm when the suspects had the guns pointed down at their sides or at their heads? Were the officers in the George case in a life-threatening situation when George held the gun at his side and before George pointed his gun at them?

Cole v. Hutchins

Now Eighth Circuit judges in the newly decided Cole v. Hutchins case have erroneously adopted the Ninth Circuit’s unscientific approach in George. In Hutchins, Officer Hutchins of the Little Rock (Arkansas) Police Department, responded to a 911 call from neighbors that there was an altercation in the front yard of the Underwood residence.

Darrell Underwood and his nephew Roy Richards became involved in a physical altercation on Underwood’s front lawn around midnight. Before arriving, officer Hutchins was told that Richards was armed with a long gun. Hutchins and a second officer parked a short distance away from the house and approached on foot because of their concern for the gun. A neighbor saw the officers approach and informed the combatants who were still fighting that the police had arrived.

From here the facts are disputed. However, the lower court in the lawsuit that followed this incident was required by pre-trial procedural rules to assume the truth of the plaintiff’s version of the facts. [8] In that version, the fight continued for about 10 seconds before stopping by mutual consent. Underwood walked toward his front porch while Richards walked to his vehicle parked in the driveway.

Richards grabbed what appeared to be a rifle from the driver’s side of his vehicle. [9] Underwood walked up the steps of the front porch and Richards walked around the back of his car holding the gun vertically and approached the porch. Richards started up the steps, but Underwood entered the home and slammed the front door. Richards walked back down the steps and started back toward his vehicle. According to Underwood roughly five seconds after he closed the front door, he heard five shots. Those shots were fired by Hutchins at Richards and he was killed. [10] It is alleged that Hutchins fired without warning Richards to drop the gun.

Cole, the personal representative for Richards’ estate, sued Hutchins and the City of Little Rock in federal court pursuant to 42 U.S.C. §1983 for allegedly violating the Fourth Amendment for using excessive force on Richards. The trial judge rejected Hutchins’ summary judgment motion based upon qualified immunity grounds. He ruled that the law was clearly established at the time of the shooting that an officer “could not use deadly force against a person who posed no immediate threat to cause serious physical injury or death.” Hutchins appealed to the Eighth Circuit, which affirmed the trial judge’s ruling.

The Eighth Circuit stated that police use of deadly force is objectively unreasonable “absent probable cause … to believe the suspect poses an immediate threat of death or serious bodily injury to others.” The court stated that a suspect’s mere possession of a firearm is not enough to establish probable cause that he/she poses an immediate threat of death or serious bodily harm. Instead, the court opined that “the suspect must also point the firearm at another individual or take similar menacing action.” The court ruled that Hutchins's shooting of Richards was not objectively reasonable because “Richards, with his gun pointed either toward the ground or the sky, retreated down Underwood’s front steps and … turned away from his front door.” The court failed to mention or discuss that while the immediate threat to Underwood had lapsed, Richards still presented a deadly immediate threat to Hutchins and his fellow officer. To support its decision, the court cited an earlier Eighth Circuit opinion in which the court declared a police shooting unreasonable and not an immediate threat when the suspect held a gun to his head and began to move it away from his head when shot by police. [11]

The court was also critical of the failure of Officer Hutchins to warn Richards before firing at him. The court observed that a warning is necessary “when feasible” before an officer uses deadly force. The court explained that “while the failure to warn when feasible does not automatically render use of deadly force unreasonable it does exacerbate the circumstances and militates against finding use of deadly force objectively reasonable.”

Conclusion

The Eighth Circuit’s decision ignores the danger Richards posed to the on-scene officers during this incident. The court’s focus was on the cessation of a deadly threat to Underwood when he entered his home and slammed the door. The fact that seemed irrelevant and inconsequential to the judges was that Richards was still in possession of what appeared to be a rifle and was walking toward his vehicle, a location that was about to give him the tactical advantage of cover behind the engine block or a vehicle pillar. Moreover, the opinion erroneously takes the position that in order for a suspect holding a firearm to be an immediate threat to an officer or others, he must point it at them or make a similar menacing action (whatever that is?).

This opinion and the earlier opinion of the Ninth Circuit in George demonstrates just how uninformed and out of touch many federal judges are regarding the threat posed to officers by persons holding a firearm, pointed at innocent persons or not, due to the “deadly reactionary gap.” In fact, Richards would still be a deadly threat to the officers before he reached cover behind his vehicle. He can decide to fire at the officers, rapidly turn, point the gun and fire so quickly that the officer will not be able to react in time. Reaction time studies show that once a decision to shoot is made and the firearm is pointed, a round can be fired in .3 tenths of a second. [12] This means that once the suspect points the weapon approximately four shots could be fired at the officer in 1.06 seconds.

Regarding the issue of a warning before an officer can fire. The Supreme Court in Tennessee v. Garner [13] made clear that warnings should be given if feasible. Common sense tells us that it is not feasible to warn if a reasonable officer believes it would place him in greater danger to warn. If the officer is standing without cover in the open in close proximity to the shooter raising or pointing a firearm, a warning is not feasible. If the suspect has his back to the officer but is holding a firearm, a warning may not be feasible.

In cases like this, it is imperative that attorneys representing accused officers present expert affidavit testimony to enlighten and educate the court in summary judgment motions and appeals concerning the “action v. reaction” concept, aka “the deadly reactionary gap.” [14] Moreover, scientific evidence from studies on the deadly reactionary gap, like the findings from the “Blair Reaction Time Study” and the many reaction time studies conducted by Force Science Institute Executive Director Dr. William J. Lewinski [12] establish beyond question that an officer who waits for a gun to be pointed at him/her can be shot before they can react. This scientific factual evidence must be communicated to all judges involved in cases of this kind.

Police chiefs associations should endeavor to be invited to speak about these matters at federal and local judicial conferences so that skeptical judges are apprised of scientific developments before becoming involved in similar matters.

References

1. 736 F.3d 829 (9th Cir. 2013).

2. Callahan M. What the Ninth Circuit got wrong in George V. Morris (and why it still matters now). PoliceOne.Com.

3. (No. 19-1399). (8th Cir. 5/28/20).

4. After the shooting Mrs. George told the police that before they arrived, she tried to physically take the gun out of her husband’s grasp but was unable to do so. This contradicted her claim that he was too weak to raise the gun. The court apparently ignored this information by limiting itself to the plaintiff’s set of facts.

5. Blair P. Reasonableness and reaction time. Police Quarterly, Vol. 14, Issue 4, pp. 323-343.

6. Eighty percent of the suspects were told in advance to fire and the remainder were told in advance to surrender. The officers were not told how the suspects would react to the order to drop the gun.

7. This assumes accurate shot placement. From a distance of 10 feet, accurate hits are highly probable.

8. When a defendant in a civil rights lawsuit files a pre-trial motion for summary judgment, asking the judge to decide the case on legal or qualified immunity grounds without permitting a jury trial, the legal procedure requires the judge to accept as true for purposes of deciding the motion, the plaintiff’s version of material facts when those facts are disputed by the parties.

9. “All witnesses believed [it to be] a rifle” but later learned it was a pellet gun after the incident was over.

10. Hutchins fired with his patrol rifle.

11. See Partridge v. City of Benton, 929 F.3d 562, 565-567 (8th Cir. 2019).

12. Lewinski W, Hudson W. Time to start shooting? Time to stop shooting? The Tempe study. The Police Marksman, Sept-Oct 2003 edition. According to a later Lewinski study, every subsequent shot will be delivered in .25 of a second intervals.

13.  471 U.S. 1 (1985).

14. Even if the court refuses to officially consider the scientific study testimony at the pre-trial stage because of legal procedural rules, the judge will nonetheless receive important education on this critical topic.

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