Smart v. City of Wichita, 951 F.3d 1161

In the early morning of March 10, 2012, Wichita Police Officers Lee Froese and Aaron Chaffee fired on and killed Marquez Smart in a crowded Old Town street; Smart was shot five times, all from behind.
Eyewitness and forensic evidence conflicted: officers and some witnesses said Smart fired a .45; other eyewitnesses (including someone standing near Smart) did not see him shoot or hold a gun; a .45 handgun was found ~10 feet from Smart and two casings along his path were matched to that gun; gunshot residue and some DNA testing did not conclusively tie Smart to firing.
Plaintiffs (Smart’s estate/heirs) sued under 42 U.S.C. § 1983 for excessive force and also raised state-law claims; the district court granted summary judgment to Officers Froese and Chaffee on qualified immunity grounds and to the City.
On appeal, the Tenth Circuit assumed plaintiffs’ version at summary judgment (i.e., Smart may have been unarmed) and considered three issues: (1) shooting an unarmed man, (2) failure to warn, and (3) shooting after the threat had passed.
The court held a jury could find a constitutional violation on the first issue but concluded the law was not clearly established (qualified immunity affirmed on that theory); it held failure-to-warn was not clearly established (qualified immunity affirmed); but it reversed as to Officer Chaffee on the claim he fired final shots after Smart was subdued (qualified immunity denied as to those final shots) and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Shooting an unarmed man (initial chase/shots)	Smart was unarmed; officers unreasonably misidentified him as shooter and used deadly force.	Officers saw a man brandish and fire a gun into a crowd; split-second response to an active shooter was reasonable.	A jury could find a constitutional violation, but the right was not clearly established in an active-shooter crowd context; qualified immunity affirmed on this theory.
Failure to warn before shooting	Officers fired without warning despite Garner’s “some warning where feasible” language.	Warnings are not required when not feasible in rapidly evolving, deadly-force situations.	No clearly established duty to warn under these circumstances; qualified immunity affirmed.
Shooting after it became apparent threat passed (final shots)	Chaffee fired additional shots after Smart fell, was unarmed and appeared to surrender or be incapacitated.	Split-second judgments and a reactionary gap can make continued firing reasonable.	A reasonable jury could find Chaffee violated clearly established law by continuing to fire after threat had ended; summary judgment reversed as to Chaffee’s final shots and case remanded.

Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force to prevent escape of an apparently unarmed suspect is permissible only if officer has probable cause the suspect poses a significant threat)
Graham v. Connor, 490 U.S. 386 (1989) (excessive-force claims analyzed under an objective-reasonableness standard considering severity of crime, immediate threat, and flight)
Mullenix v. Luna, 136 S. Ct. 305 (2015) (qualified immunity requires attention to whether law was clearly established at the particularity required, especially in Fourth Amendment contexts)
Pauly v. White, 874 F.3d 1197 (10th Cir. 2017) (circumstantial evidence can create fact disputes that preclude summary judgment in officer-involved shootings)
Fancher v. Barrientos, 723 F.3d 1191 (10th Cir. 2013) (denying immunity for second series of shots when officer had time to recognize changed circumstances)
Carr v. Castle, 337 F.3d 1221 (10th Cir. 2003) (use of deadly force became unlawful once attacker had been disarmed or posed no further threat)
Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006) (deadly force unlawful where suspect held a knife to himself and posed no threat to officers or others; clearly established right under plaintiff’s version)
Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016) (officers are not entitled to continued use of force once a suspect is effectively subdued)