981 F.3d 808
10th Cir.2020Background
- On Aug. 12, 2016, Dominic Rollice was confronted by Officers Girdner, Reed, and Vick after his ex-wife called 911 asking that he be removed; officers said they intended to get him a ride, not arrest him.
- Officers asked to pat-down Dominic after perceiving him as “fidgety”; he refused; a brief confrontation ensued at the garage side door.
- Video shows an exchange in the garage: Dominic moves to the back, grabs a hammer, holds it with one arm extended and later pulls it back as officers shout orders to drop it; officers fire multiple shots, Dominic falls and dies.
- The Estate sued under 42 U.S.C. § 1983 for excessive (deadly) force; the district court granted summary judgment to the officers on qualified immunity grounds.
- The Tenth Circuit reversed, holding that viewed in the light most favorable to the Estate a reasonable jury could find (1) the officers recklessly created the lethal situation by cornering an intoxicated Dominic, and (2) that the officers are not entitled to qualified immunity because Allen and related precedent gave fair warning such conduct is unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers violated the Fourth Amendment by using deadly force | Rollice acted defensively (did not lunge or swing); hammer was short-range; deadly force unreasonable | Rollice refused commands, raised hammer within ~8–10 ft; officers reasonably perceived immediate threat | Triable issue: a reasonable jury could find a constitutional violation when facts viewed for the Estate |
| Whether Officer Girdner’s final shot was unlawful | Final shot occurred after Rollice was critically wounded, crouched, and no longer a threat | Encounter was fast/chaotic; continued shots reasonable until threat clearly ended | Triable issue: facts ambiguous; summary judgment inappropriate |
| Whether officers recklessly created the need for deadly force by cornering Rollice | Girdner advanced, backed Rollice into garage, and officers blocked exit, causing him to arm in self-defense | Officers contend Rollice’s movements precipitated escalation | Court: Allen line supports that reckless approach that precipitates lethal force can violate Fourth Amendment; jury question remains |
| Whether the constitutional rule was clearly established (qualified immunity) | Allen and related precedent gave fair warning that recklessly creating a lethal situation when confronting an impaired person armed only with a short-range weapon is unlawful | Defendants argued no controlling case with the same facts; law not clearly established | Held: Under Allen and its progeny (as interpreted by Ceballos and others), law was clearly established such that summary judgment on qualified immunity was improper |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (1989) (reasonableness of force judged under Fourth Amendment from perspective of reasonable officer on scene)
- Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force constitutes a seizure and must be reasonable)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity framework and discretion in prong ordering)
- Mullenix v. Luna, 577 U.S. 7 (2015) (qualified immunity protects officers unless conduct violated clearly established law)
- Plumhoff v. Rickard, 572 U.S. 765 (2014) (officers need not stop shooting until threat has ended in rapidly evolving situations)
- Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997) (officers’ reckless conduct that precipitates lethal force can constitute a Fourth Amendment violation)
- Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019) (applies Allen; holding that reckless officer conduct creating need for lethal force can be unconstitutional and that Allen put officers on notice)
- Estate of Smart v. City of Wichita, 951 F.3d 1161 (10th Cir. 2020) (analyzing when a final shot occurs after a threat has passed)
- Sevier v. City of Lawrence, 60 F.3d 695 (10th Cir. 1995) (officers’ own reckless or deliberate conduct during seizure is relevant to reasonableness inquiry)
- Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (10th Cir. 2008) (factors for assessing immediacy of threat when a suspect is armed)