675 F. App'x 799
10th Cir.2017Background
- On Oct. 26, 2012, Box Elder County Deputy Austin Bowcutt stopped Troy Burkinshaw for public urination; Burkinshaw fled in his Volkswagen and a pursuit ensued.
- The pursuit ended in a cul‑de‑sac where Bowcutt boxed the vehicle with his patrol truck, exited, and stepped in front of the moving car while drawing his service weapon.
- Video (dashboard camera) shows the Volkswagen moving forward with its bumper inches from Bowcutt as he shouted commands; Bowcutt fired three shots through the windshield, killing Burkinshaw.
- Plaintiff Carolyn Clark (mother) sued under 42 U.S.C. § 1983 alleging excessive deadly force (Fourth Amendment) and related state claims; district court denied Bowcutt’s summary judgment motion asserting qualified immunity, citing disputed facts.
- On interlocutory appeal, the Tenth Circuit accepted Bowcutt’s concession to view facts in plaintiff’s favor for purposes of jurisdiction and reviewed only legal questions.
- The Tenth Circuit held Bowcutt’s use of deadly force was objectively reasonable under the Fourth Amendment and reversed, awarding qualified immunity and directing entry of summary judgment for Bowcutt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bowcutt’s shooting violated the Fourth Amendment (excessive deadly force) | Shooting was unreasonable because Bowcutt stepped in front of the car and could have moved aside; deadly force was not justified for a minor initial offense | Bowcutt reasonably perceived an immediate threat of serious harm when the car moved toward him and he had seconds to react | Held for defendant: no constitutional violation; use of deadly force was objectively reasonable |
| Whether Bowcutt’s conduct unreasonably created the need for deadly force (recklessness) | Bowcutt’s stepping into the car’s path was reckless and created the danger, precluding self‑defense justification | Even if Bowcutt stepped forward, his conduct was not reckless to a constitutional degree; officers need not use the least restrictive means | Held for defendant: conduct did not rise to recklessness that negates reasonableness |
| Whether lesser force or allowing escape required by law | Plaintiff: officer had alternatives and could have let Burkinshaw flee rather than shoot | Defendant: officers need not use the least intrusive means when confronted with an apparent imminent threat | Held for defendant: availability of alternatives did not render the shooting unreasonable |
| Appellate jurisdiction to review denial of qualified immunity (interlocutory appeal) | Plaintiff: district court’s reliance on disputed facts might defeat appellate jurisdiction | Defendant: conceded plaintiff’s version of facts for appeal so legal question ripe | Held: Court had jurisdiction to review legal question of qualified immunity and did so |
Key Cases Cited
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity denials are interlocutory appeals as to legal questions)
- Saucier v. Katz, 533 U.S. 194 (2001) (qualified immunity framework and analysis of reasonableness)
- Graham v. Connor, 490 U.S. 386 (1989) (objective‑reasonableness test for excessive force under the Fourth Amendment)
- Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force permissible when officer has probable cause to believe suspect poses serious threat)
- Scott v. Harris, 550 U.S. 372 (2007) (video evidence may control summary judgment where it blatantly contradicts plaintiff’s version)
- Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (10th Cir. 2008) (factors for assessing threat when vehicle may be used as a weapon)