Lead Opinion
STRANCH, J., delivered the opinion of the court in which BLACK, D.J., joined, and CLAY, J., joined in part. CLAY, J. (pp. 554-59), delivered a separate opinion concurring in part and dissenting in part.
Lowell Phillips, then a Ferndale Police Officer, ended a car chase on the outskirts of Detroit by ramming Laszlo Latits’s car off the road and then shooting and lolling Latits as he tried to resume flight. Latits’s widow sued former Officer Phillips under 42 U.S.C. § 1983 alleging that Phillips’s actions violated the Fourth Amendment. The district court granted summary judgment to Phillips, concluding that the shooting was reasonable. We determine that Phillips’s use of deadly force was objectively unreasonable, in violation of the Fourth Amendment. Caselaw existing at the time of the events, however, did not clearly establish the objective unreasonableness of Phillips’s actions in the circumstances of this case. Phillips is therefore entitled to qualified immunity and we must AFFIRM.
I, BACKGROUND
The events of this case were recorded by video cameras mounted on the dashboards of four separate police cars. Consequently, we describe the facts “in the light depicted by the videotape.” Scott v. Harris,
After midnight on June 24, 2010, Fern-dale Police' Officer Kenneth Jaklic stopped Latits for turning the wrong way onto a divided boulevard. Jaklic approached the car with a flashlight. Latits produced his driver’s license and opened his glove box to retrieve his registration and insurance documents. Officer Jaklic testified that inside the box he saw one or more bags that he suspected to contain marijuana and a pill bottle, all of which Latits attempted to move under the passenger seat. Jaklic testified thát he then told Latits to get out of the car. The video recorded by the officer’s dashboard camera shows that Jaklic took out his gun about eight seconds after walking up to the car, and then stood at La-tits’s window shining his flashlight into the car and pointing the gun at the ground for about thirty seconds. Officer Jaklic then raised his gun and pointed it at Latits’s head at point-blank range. Latits drove away, and Jaklic ran back to his police car to pursue him.
Officer Jaklic broadcast that he was pursuing a fleeing vehicle and other officers headed in that direction to join the chase. Jaklic announced that he was chasing a suspect for a traffic violation and possible health code violation, including “stashing some narcotics underneath his chair.” After fleeing from Jaklic for nearly two minutes (during which time Latits’s car cannot be seen clearly on video), Latits entered an empty parking lot. Officer Jaklic’s car entered the parking lot and slowly moved into the path of Latits’s car, at which time Latits can be seen steering away from
At the moment of the near miss of the cars of Latits and Jaklic, the dashboard camera of the Defendant, Officer Phillips, shows that the parking lot where Latits was located was just ahead of Phillips. The district court determined that a reasonable jury could find from the video that Officer Phillips could see that Latits did not try to ram Jaklic and therefore knew that Officer Jaklie’s statement otherwise was false.
After avoiding Officer Jaklie’s car, Latits fled the parking lot, turning south on to a ten-lane divided highway. Three officers were now chasing close behind Latits: Officer Andrew Wurm first, Officer Jaklic second, and Officer Phillips third.
For approximately thirty seconds, Latits led the three officers southbound down the highway at about sixty miles per hour, passing through two red lights. No pedestrians or other cars are visible on the nighttime highway except one parked car two lanes away from Latits. The highway was bounded by a cemetery on one side and a commercial zone and vacant state fairgrounds on the other.
■ Latits next attempted to make a U-turn but partially ran over the curb of the grassy highway median. Wurm, still the first officer behind Latits, also attempted to make the U-turn, and collided with the rear driver’s side of Latits’s car.
The two impacts by Officer Wurm’s car apparently caused Latits to lose control of his car, which swerved to the right and then back left across three lanes. No pedestrians or cars besides those of Latits and the officers are visible on the video during this time. Latits’s car then straightened out and traveled northbound for nearly five seconds. While Latits was swerving, Officer Phillips sped past Officers Jaklic and Wurm and, nearly five seconds after Latits’s car had straightened out, Phillips rammed Latits’s car from the
' When Latits’s car stopped it was parallel and to‘the right of Officer Phillips’s car. Officer Wurm pulled onto the grass parallel to the opposite side of Latits’s car. Latits slowly began to drive forward through the opening between the cars of Phillips and Wurm, while Officer Jaklic slowly drove towards the same opening from the opposite direction in an apparent attempt to block it. Latits’s and Jaklic’s ears then had a very low-speed head-on collision. Officer Jaklic testified that he was hot injured and his police car suffered minimal damage to the push bar on its front end.
At about the same time, Officer Phillips jumped out of his car and ran toward Latits’s car from behind it.
Seven shell casings were recovered from the scene matching Officer Phillips’s gun.
Phillips was terminated for his conduct during the pursuit that ended in the shooting death of Latits. Among 'the reasons for Phillips’s termination, the Ferndale Chief of Police cited the following violations of police policy: Phillips engaged in vehicular pursuit as the third police car without permission, passed the secondary and primary vehicles in the pursuit, used a PIT maneuver in violation of a direct order, and ran up to Latits’s car -instead of taking a tactical position using his vehicle as cover. '
The Plaintiff sued under 42 U.S.C. § 1983 alleging that Phillips’ violated La-; tits’s clearly established Fourth Amendment rights by using deadly force to terminate the chase. The district court granted summary judgment to Phillips, concluding that his use of deadly force was objectively reasonable. Latits timely appealed.
A. Standards of Review
We review grants of summary judgment de novo, viewing the facts in the light most favorable to. the non-moving party. Godawa,
This suit implicates the doctrine of qualified immunity. Public officials are entitled to qualified immunity from suits for civil damages if either the official’s conduct did not violate a constitutional right or if that right was not clearly established at the time of the conduct. Id. at 462-63. (citing Saucier v. Katz,
B. Whether a Constitutional Right Was Violated
The Fourth Amendment’s prohibition against unreasonable seizures protects citizens from excessive force by law enforcement officers. Id. at 463. While officers may? use some degree of physical coercion to make -an arrest, the Fourth Amendment requires the amount of force to be objectively reasonable under the totality of the particular circumstances. Graham v. Connor,
The reasonableness inquiry is an objective one, considered from the perspective of a hypothetical reasonable officer in the defendant’s position and with his knowledge at the time, -but without regard to the actual defendant’s subjective intent when taking his actions. Id. at 397,
As á general rule, the Fourth Amendment prohibits' the use of deadly force to prevent the escape of fleeing suspects unless “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner,
The Sixth Circuit has developed “a consistent framework in assessing deadly-force claims involving vehicular flight.” Cass v. City of Dayton,
To determine whether Latits presented an imminent danger to officers or the public at the time Officer Phillips shot him requires analysis of both the moments before the shots were fired and the prior interactions between Latits and Phillips. Just before the shots, the videos show that Latits reversed past Phillips before Phillips raised his gun and before gunshots can be heard. In Hermiz v. City of Southfield we stated that: “A reasonable jury drawing inferences in the estate’s favor could determine that an officer that aimed and fired shots while to the side of the vehicle,” after “the hood of [the suspect’s] car already passed the point where it could harm [the officer],” “would have had time to realize that he was no longer in the path of the car and no longer in immediate danger.”
The evidence also shows that Officer Phillips could see that no other officers or other persons were in Latits’s path when Phillips fired. Latits was reversing away from Officers Jaklic and Wurm, who were in front of him and to his left, respectively. Officer Danielson’s dashboard camera shows that Phillips’s car was between her car and Latits’s car at the time of the shooting, so Latits was reversing away from her as well. There were no other officers on the scene, and there is no evidence or suggestion by the Defendant that members of the public were in the immediate path of Latits’s car. Cf. Cupp,
Several of our cases have concluded that deadly force was objectively unreasonable when the officer was to the side of the moving car or the car had already passed by him—taking the officer out of harm’s way—when the officer shot the driver. Godawa,
Because it is undisputed that Latits was fleeing to avoid arrest, we turn to the Graham factor that analyzes the severity of the crime at issue. Officer Phillips knew from Officer Jaklic’s broadcast that Latits was originally suspected of possessing narcotics—not a violent crime. The second Graham factor asks if the individual poses an immediate threat to the safety of an officer or others. The videos show that Officer Phillips first observed Latits’s car as it was turning to avoid Officer Jaklic’s car; the district court determined that Phillips could see that Latits did not try to ram Jaklic’s car. Latits then fled at no more than sixty miles per hour down an almost entirely empty ten-lane divided highway at night. In his pursuit of Latits, Phillips passed only one parked car, and no other pedestrians, cyclists, or non-police cars are visible on Phillips’s dashboard camera for the remainder of the chase. The videos make clear that Phillips observed Latits drive partially over a grassy median, attempting a U-turn, and then saw Officer Wurm’s car hit Latits’s car twice, and that Latits did not ram Officer Wurm. Phillips then observed Latits swerve across the empty highway, which was bordered by a cemetery and largely vacant state fair grounds. As Officer Phillips sped past the two officers preceding him in the pursuit (in violation of department policy), he could observe that Latits was able to straighten his car for about five seconds before Phillips rammed him off the road (also in violation of department policy and a direct order). Up to the point when Latits’s car came to a stop after Officer Phillips rammed it off the road, Latits had shown no intent to injure the officers. Though Latits did briefly lose control and swerve after Wurm hit him twice (for which Officer Wurm was disciplined for violating department policy), there were no members of the public nearby to be endangered and Latits appeared to regain control of his car before Officer Phillips rammed him.
Finally, after Latits’s car had come to a stop off the road, Officer Phillips observed Latits slowly drive forward and collide with the front of Officer Jaklic’s car. However, the video permits the reasonable interpretation that this collision was accidental, in which case it would provide less justification for deadly force. See Sigley,
Permitting Latits to continue to flee instead of shooting him would not have put the public in imminent danger either. The chase occurred under circumstances in which risk to the public was relatively low. Latits- drove at a maximum of sixty miles an hour on a large, effectively empty highway surrounded by non-populated areas (a cemetery and vacant state .fairgrounds), passing no pedestrians, cyclists, or motorists besides the police trailing him. Cf. Walker v. Davis,
We must, however, also view the facts with due deference to the quick decisions Officer Phillips- had to make in a tense, uncertain, and rapidly evolving situation. Graham,
Furthermore, the short time between the collision with an officer’s vehicle and the shooting does not, by itself, justify deadly force. In Godawa, for example, we held that it was unreasonable for the officer to shoot at the driver two seconds after the officer had contact with the driver’s car, even though the. officer subjectively believed the driver had just targeted and assaulted him with his car.
Phillips also argues that some level of recklessness permits deadly force even without the driver’s intent to injure or ram, because extremely reckless driving can create the imminent threat to others that can .justify deadly force. See, e.g., Plumhoff v. Rickard, — U.S. —,
In several cases, the suspects demonstrated obvious willingness to endanger the public by leading the police on chases at very high speeds and through active traffic. See Plumhoff,
In sum, considering the totality of the circumstances in the light depicted by the video and otherwise most favorable to the Plaintiff, we conclude that Latits did not present an imminent or ongoing danger and therefore that the shooting was not objectively reasonable. In addition, although police procedures do not set the bounds of the Fourth Amendment, we consider it relevant that Officer Phillips repeatedly violated police procedures in both ramming Latits and running up to his car. See Mullins,
C. Whether that Right was Clearly Established
Even if Officer Phillips violated Latits’s constitutional right, he is entitled to qualified immunity if that right was not clearly established at the time of the violation—June 2010. “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix,
The Supreme Court has instructed that the question that must be beyond debate is a specific one: Was the “particular conduct” violative “in light of the specific context of the case.” Mullenix,
The Plaintiff has not identified any case-law where an officer, under sufficiently similar circumstances was held to have violated the Fourth Amendment, and neither have we. The Plaintiff relies on Sigley and Cupp to argue that Phillips violated clearly established law. The dissent also argues that Sigley and Cupp had clearly established by 2010 that Phillips’s conduct was unconstitutional. We have held that, as
Although it is relevant to the first prong of the qualified immunity analysis, see supra Part II.B at 13, Phillips’s violation of Ferndale Police Department policies does not require a different outcome. “[T]he fact that an officer’s conduct merely violates a departmental policy does not cause that officer to lose their qualified immunity.” Bell v. City of E. Cleveland,
This case establishes important constitutional parameters. At the time of the actions of Officer Phillips, however, it cannot be said that existing precedent made it clear to reasonable officials that what Phillips did violated the Fourth Amendment. Thus, this case fails to satisfy the “clearly established” prong of the qualified immunity doctrine.
III. CONCLUSION
We hold that Officer Phillips’s conduct was objectively unreasonable and in violation of the Fourth Amendment. Its unreasonableness, however, was not clearly established at the time of Officer Phillips’s actions, and he is therefore entitled to qualified immunity. For that reason, we must affirm.
Notes
. The Plaintiff submitted evidence to the district court (from a deposition in another case in which the Ferndale Chief of Police discussed Officer Phillips’s role in the events of this case) that Ferndale Police Department policy prohibits more than two police cars from actively pursuing a fleeing car without special permission. The Ferndale Chief of Police testified that Officer Phillips violated department policy by joining the pursuit as the third police car without the required permission.
. Officer Wurm received a written reprimand for intentionally striking the suspect vehicle during the pursuit in violation of Ferndale’s chase policy, according to the Ferndale Chief of Police.
. This was a so-called PIT maneuver. PIT maneuvers were against Ferndale policy, -and the Chief of Police had specifically ordered Officer Phillips never to use a PIT maneuver.
. The Ferndale Chief of Police testified that Officer Phillips violated department procedures by running to the suspect vehicle instead of taking a tactical position using his vehicle as cover.
. Officer Phillips claims on appeal that the videotape shows him having to jump out of the way when Latits drove backwards after colliding with Officer Jaklic’s car. The video instead shows that as Latits reversed, Phillips Was to the side of Latits’s car.
, At deposition, Phillips recalled firing one volley of only four shots.
. We need not address the parties’ arguments about a potential second volley of shots. Whether Officer Phillips fired the seven bullets in one or two volleys, all shots were fired within a few seconds of one another and at a time when the situation was the same for purposes of this reasonableness analysis (La-tits’s car had already passed Officer Phillips and was moving away from all officers on the scene).
. While Hermiz itself is not controlling authority as an unpublished case, Sigley and Cupp, the cases that established the caselaw cited in Hermiz, are controlling.
. The dissent also raises Kirby v. Duva,
.Because we affirm the grant of summary judgment and the case will be dismissed, we need not address the parties' arguments regarding discovery and punitive damages.
Concurrence Opinion
concurring in part arid dissenting in part.
The majority spends the bulk'of its opinion explaining how Officer Phillips’ use of deadly force was objectively unreasonable, citing case upon case (mariy from before 20Í0, the year of the incident in question) to conclude that Officer Phillips violated Latits’ ’constitutional rights. In the final stretch,'" however, the' majority abruptly shifts gears to hold 'that Latits’ constitutional ' rights were not clearly’established and that Officer Phillips is therefore entitled to qualified immunity. In so holding, the majority has created a nearly impenetrable barrier for plaintiffs seeking to vindicate their rights against governmental officials. Because I believe that the majority opinion is contrary to- governing case law, which clearly establishes that an officer may not shoot ;a fleeing suspect who poses no danger to others, I respectfully dissent.
The facts, as revealed by the record and as presented by the majority, are as follows: On the night of June 24,2010, City of Ferndale Police stopped Latits for turning the wrong way onto a divided boulevard. Officer Jaklic approached the car and noticed Latits attempting to hide, what appeared to be drugs. Jaklic told . Latits to get out of the car, and Latits took, off. Three squad cars then,pursued Latits on a chase through a parking lot and down an empty highway at speeds not exceeding 60 m.p.h. Latits’ vehicle came to a temporary halt when he tried to make a U-turn over the curb of the grassy highway median. At this point, Officer Wurm attempted to make the same U-turn and hit Latits’ vehicle., Officer Wurm tried to reorient his vehicle, and he hit Latits a second time. Latits straightened out his vehicle and began traveling northbound, when, about five seconds later, Officer Phillips sped past Jaklic and Wurm and rammed into Latits, thrusting Latits’ car across two lanes of traffic and off the road. Latits spun out to an area of grass and concrete, leaving him parallel with Phillips’ car, thus ending the chase. All told, the chase lasted about three minutes. And through the entirety of it, the only collisions that Officer Phillips saw occurred when Officer Wurm twice hit Latits, and when Phillips, himself, rammed into Latits’ back left. From Phillips’ vantage point, he could see that Latits had repeatedly tried to maneuver around the officers’ cars to avoid hitting them.
With Latits stopped, Officer Wurm pulled onto the grass parallel to Latits and opposite from Phillips. Latits slowly began to drive forward through the opening between Phillips and Wurm, while Officer Jaklic slowly drove toward Latits’ front to block him in. Látits and Jaklic had a very low-speed head-on collision, in which Jaklic was not injured and his car sustained minimal damage.
In violation of police procedure, Officer Phillips jumped out of his car and ran toward Latits’ car from behind it. Phillips was standing alongside Latits’ front passenger-side door as Latits started backing away from Officer Jaklie’s car. Although Phillips could see that no cars or persons were immediately behind Latits as he reversed, Phillips opened fire on Latits, and Latits’ car rolled to a stop. Latits was struck by three bullets and died at the hospital later that morning.
The unconstitutional nature of Phillips’ conduct would have been clear to a reasonable police officer. Indeed, it was clearly established under Tennessee v. Garner,
Although Gamer did not involve a preceding car chase, its holding was clear enough to have placed Phillips on notice that his conduct was unconstitutional. Bouggess,
The majority relies on Mullenix v. Luna, — U.S. —,
Unlike Mullenix, this- is not a case where a police officer may have needed more judicial guidance to determine whether the particular risk justified the use of deadly force. Indeed, the majority concludes that Latits “did not present an imminent or ongoing danger” to officers or to any civilians. This case therefore falls into the category of cases that Mullenix
In reaching its conclusion that Laths’ right to be free from the use of deadly force in these circumstances was not clearly established, the majority markedly raises the legal barrier posed by the qualified immunity defense beyond any existing legal standard, making it virtually impossible for plaintiffs to overcome the defense even under circumstances where then-rights have obviously been violated. The majority quotes Mullenix as holding that “[a] clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”
It was clearly established at the time of the shooting, based on Supreme Court and Sixth Circuit caselaw, that an officer may not use deadly force against a fleeing felon who poses no threat to others. Indeed, as early as 1983, this Court held:
Before taking the drastic measure of using deadly force as a last resort against a fleeing suspect, officers should have probable cause to believe not simply that the suspect has committed some felony. They should have probable cause also to believe that the suspect poses a threat to the safety of the officers or a danger to the community if left at large.
Garner v. Memphis Police Dept.,
Three cases in particular warrant further discussion: Smith v. Cupp, Sigley v. City of Parma Heights, and Kirby v. Duva, In Smith v. Cupp,
In Cupp, this Court concluded that an officer was not entitled to qualified immunity for his use of deadly force against a man fleeing in a car. In that case, the police officer had arrested the plaintiff, whom the officer perceived to be intoxicated, for making harassing phone calls in his presence. Id. at 769. The officer placed the compliant plaintiff in the back of his police cruiser while he went to talk with a tow truck driver. The plaintiff then moved from the back seat to the front and began to flee the scene in the police officer’s vehicle. The plaintiff drove the police vehicle toward the officer and the tow truck driver. The officer moved out of the way of the vehicle and fired four fatal shots at the plaintiff as he drove past. The officer claimed that the plaintiff had directed the vehicle at him and the tow truck driver and that he shot the plaintiff in self-defense. Id. at 770. The tow truck driver stated that the plaintiff may have redirected the vehicle in order to follow the direction of the road, rather than to target the officer and himself. Id. at 774. The tow truck driver also stated that the officer was “running towards the patrol car” when he fired shots at the plaintiff. Id.
After considering the evidence under the plaintiffs version of events, this Court con-. eluded that the officer violated the plaintiffs constitutional rights. The Court stated:
According to the plaintiffs’ evidence, [the officer] shot Smith after the police cruiser was past [the officer] and there was no immediate danger to anyone in the vicinity. [The officer’s] use of force was made even more unreasonable by the fact that Smith had been cooperative up to this point, and was arrested for the nonviolent offence of making harassing phone calls. Although there was some danger to the public from Smith’s driving off in a stolen police car, the danger presented by Smith was not so grave as to justify the use of deadly force.
Id. at 773. The Court said that a reasonable officer in this position “would not have perceived danger to anyone at the scene,” including himself. Id. at 774. The Court further explained that, “[although this circuit’s previous cases give substantial deference to an officer’s decision to shoot an unarmed suspect in a car chase, the officer must have reason to believe that the car presents an imminent danger.” Id. at 775.
Similarly, in Sigley, police arranged a controlled buy-bust operation to arrest a suspected ecstasy dealer.
The majority contends that Cupp and Sigley are insufficiently similar to the facts in this case .in order for it to be clearly established that Phillips’ conduct violated the law. It is a truism that every case is distinguishable from every other. But the degree of factual similarity that the majority’s approach requires is probably impossible for any plaintiff to meet. Indeed, the majority’s attempt to meaningfully distinguish Cupp and Sigley is entirely unpersuasive. The majority says that these cases are different from the instant case insofar as “each involved little more than one or more officers confronting a car in a parking lot and shooting the driver as he attempted to initiate flight.” That is precisely the situation we have here.
Moreover, Kirby v. Duva,
Under that version, [the plaintiffs vehicle] was moving slowly and in' a non-aggressive manner, could not have hit any of the officers, and was stationary at the time of the shooting. Consequently, reasonable police officers in defendants’ positions would not have believed that [the plaintiff] ‘pose[d] a threat of seriousphysical harm, either to the officers] or to others.’
Id. (citing Garner,
Officer Phillips presented no evidence that Latits was violent,' that he had a weapon, or that he was going to endanger other individuals in the area. All that can be said about Latits’ driving, based on the majority’s description of the events leading up to the shooting, is that he initiated' a chase “in which risk to the public was relatively low,” that he tried to maneuver around officers, like the plaintiffs in Sigley and Kirby, and that his vehicle was struck multiple times by the officers’ vehicles. Moreover, when Officer Phillips shot him, Latits had shown no intention to harm the police officers, and Phillips could see that no officers or other persons were in Latits’ path as he backed away. Under these circumstances, it would have been clear to any reasonable officer that they could not use deadly force against Latits.
Again, applicable case law clearly establishes that an officer should not be protected by qualified immunity when the shooting victim poses no immediate danger to the officer or to the public. Our panel is unanimous in its conclusion that the officer in this cáse acted in an objectively unreasonable manner and needlessly cost a person his life. Because I also believe that Latits right not to be seized by deadly force when fleeing arrest was clearly established at the time he was killed, I respectfully dissent.
. Although the majority correctly points out that Latits had just led police officers on a car chase for several minutes, if Dickerson tells us anything, it is that an officer’s conduct must be judged on the circumstances that confronted the officer at the time he took the action.