Michael Brown's family may face uphill battle in legal action

Caselaw is replete with judges refusing to second-guess officers' decisions

By Scott Lauck
The Daily Record Newswire

ST. LOUIS, MO - Police officers can shoot a suspect only in "objectively reasonable" circumstances, but proving an officer's actions weren't reasonable after the fact is easier said than done.

The investigation into the Aug. 9 shooting of 18-year-old Michael Brown by a Ferguson police officer is ongoing, and details remained murky. But as Brown's family retains lawyers and appears to contemplate civil litigation, they'll have to contend with caselaw that is often highly deferential to officers accused of using excessive, even deadly, force.

Still, with the right set of facts and a lot of persistence, such suits can be fruitful, said attorney Chris Lawler, who helped successfully represent the wife of a man who was fatally shot by police in 2009 in Kansas City, Kansas.

"They can be onerous," Lawler said, noting that his excessive-force suit involved some 35,000 documents and 35 depositions. "They take a lot of work."

Lawler's case stemmed from the shooting of Christopher Utter, 33, whom police found passed out drunk in his car. When the officers knocked on the windows, Utter drove away in the wrong direction down a one-way street.

After boxing in Utter with police cruisers, one of the officers approached on foot. The officer alleged Utter tried to run him over with his vehicle and that he shot in self-defense. The plaintiffs, however, said the officer's shots entered through the driver's side window at close range, demonstrating that the officer had been out of the way of the car and wasn't in danger. The case settled last year for $750,000.

Such a success, however, appears to be the exception to the rule. The Utter case was filed in federal court in Kansas and analyzed under caselaw in the 10th U.S. Circuit Court of Appeals. Any federal litigation related to Brown's death would be in the St. Louis-based 8th Circuit.

"The standard doesn't change" from circuit to circuit, Lawler said, but interpretations of caselaw can.

He wasn't aware of any 8th Circuit cases similar to the allegations surrounding Brown's death, but he added, "there's not always a case directly on point."

Hindsight judgment

In general, 8th Circuit caselaw is replete with examples of judges refusing to second-guess decisions officers made during split-second life-or-death situations. For instance, U.S. District Judge Greg Kays last year dismissed several Kansas City-area police agencies from a lawsuit over a fatal shooting of a man by police in 2010.

Mahir Al-Hakim was in a wooded area with what appeared to be a gun. He allegedly pointed the gun at police, prompting them to fire. The weapon was later determined to be a BB gun.

A news helicopter had captured video of the shooting, and it appears to show that Al-Hakim didn't threaten the officers and that the packaging for the BB gun was plainly visible. The judge, however, refused to exercise "hindsight judgment," in part because the video was shot from the air, not from the officers' point of view.

Of course, not all fatal cases take place in a split second. Last month, the 8th Circuit upheld summary judgment for several St. Louis County police officers who had repeatedly used a Taser - ostensibly a non-deadly weapon - on a schizophrenic man they were arresting. The man, Samuel DuBoise, went into cardiac arrest and died.

DuBoise, who had been wandering his neighborhood delusional and naked, had allegedly acted violently and was resisting arrest when the officers used a Taser on him at least 10 times. The appellate panel's majority said the officers' actions were reasonable because DuBoise had continued to fight them. A dissenting judge, however, said DuBoise was clearly unarmed and that the officers should have tried to subdue him some other way.

Fatal shootings aren't necessarily limited to humans. In November 2011, Judge Nanette Laughrey granted summary judgment to several Columbia SWAT team officers who had raided the house of man suspected of selling drugs. In the process, the officers shot and killed the man's family's pit bull and wounded another family dog, while the man's wife and her 7-year-old daughter watched.

In a federal lawsuit, the family claimed the dogs were not being aggressive and needn't have been shot, but Laughrey ruled that "simply by standing their ground or running excitedly" in the officers' path, the dogs had presented enough of a potential risk "to justify a reasonable officer in incapacitating the dogs." (The case was analyzed not as an instance of excessive force but as a "seizure" of the dogs as the plaintiffs' property.)

The U.S. Supreme Court articulated the test for excessive force cases in a 1989 ruling, Graham v. Connor, which said courts must determine whether the officer's use of force was "objectively reasonable" based on the officer's view at the time of the incident.

'That is not the law'

Much of the controversy around Brown's death stems from the fact that he was apparently unarmed. Courts, however, have upheld police shootings of unarmed suspects based on the police officer's perception of the incident.

In a 2012 ruling, the 8th Circuit upheld summary judgment rulings for an officer who shot a man during a disturbance in Minnesota, which is part of the appellate circuit. An officer was called after Cassidy Loch tried to drive away from his home while intoxicated and threatened himself with a gun. Loch later abandoned the weapon, though the officer didn't realize it. When Loch got out of his vehicle and approached the officer, he stumbled on a snowbank. One of his hands touched his side, and the officer shot Loch eight times. Loch survived.

The officer said he saw what appeared to be a firearm on Loch's belt. It turned out to be a cellphone holder. Witnesses said they'd shouted to the officer that Loch was no longer armed, but the officer said he hadn't heard them.

Loch argued that it was "objectively unreasonable to use deadly force against an unarmed suspect," but the 8th Circuit responded curtly, "That is not the law."

"An act taken based on a mistaken perception or belief, if objectively reasonable, does not violate the Fourth Amendment," the court said.

Many excessive-force suits against police officers are filed in federal court under U.S. statutes that permit private individuals to sue for violations of their civil rights. Importantly, the federal civil rights statutes allow victorious attorneys to recover their fees from the government.

Cases can also be tried in state court under wrongful death statutes. One such case, stemming from the fatal shooting of a Kansas City man in 2008, was tried last year in Jackson County Circuit Court.

On May 8, 2008, police tried to pull over Terry Davis, 26, for driving erratically. Davis fled his vehicle on foot, and during the ensuing chase, a Kansas City police officer fatally shot Davis.

Davis' family alleged that he had already surrendered to police when he was shot, but the officer said Davis had turned and pointed a gun at him, forcing him to fire. The jury decided in favor of officer.

Andrew Protzman, an attorney for Davis, said the standards remain the same whether the plaintiff is in federal or state court. So do the inherent hurdles.

Protzman said race relations are always an "undercurrent" in such cases - Brown was African-American, lending racial overtones to the Ferguson case - as is the fact that people injured or killed by police may have been involved in illegal or suspicious activity. In Brown's case, details about his encounter with the officer were still unclear last week.

Perhaps the toughest thing to overcome is judges' and jurors' inherent confidence in police officers, who perform dangerous jobs "in circumstances that are tense, uncertain and rapidly changing," as 8th Circuit's model jury instructions put it.

Protzman, however, said the public has a right to trust that officers will only use force when it's truly necessary.

"They can't take these kinds of actions and then later fall back on a defense of, 'We have a really difficult job, and we don't always get it right,'" Protzman said. "If you're going to give somebody this kind of authority, they have to get it right."

Published: Tue, Aug 26, 2014

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