Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week.
The same panel found that the officers are entitled to qualified immunity and thus cannot be sued in connection with the incident. The legal doctrine allows state actors to violate your rights without fear of civil liability if the exact manner in which they misbehaved has not been declared unconstitutional in a preexisting court precedent. (A practical example: Two cops in Fresno, California, allegedly pocketed $225,000 while executing a search warrant, but the victims were not permitted to sue because no ruling on the books said that stealing under those precise circumstances is a violation of someone's rights.)
On June 14, 2014, Bessemer Police Department (BPD) Officers Daniel Partridge and Christopher Asarisi responded to a complaint from a woman who reported what she thought was a domestic violence dispute somewhere nearby and that she thought she heard two gunshots. When the cops arrived, they found Marcus Underwood and Ray James, who appeared to be arguing.
The men immediately dispersed; Underwood, who got in his car, responded that they were just "clowning." Both officers say they told him to stop, but Underwood inched forward with "the foot off the brake," according to Asarisi. The officers allegedly then began shooting at his vehicle, prompting Underwood to accelerate and collide with Partridge, who was not injured. They fired a total of 20 shots and continued to shoot from behind as Underwood drove away. He ultimately crashed the vehicle into a house and needed immediate medical attention.
Analyzing the case, the U.S. Court of Appeals for the 11th Circuit found that the officers violated Underwood's Fourth Amendment rights. "While Underwood was not obeying orders to stop and was evading talking to the police, Underwood was not driving aggressively or in a threatening way," wrote Circuit Judge Charles R. Wilson. "The car was still eight feet away, [Partridge] did not warn Underwood that he would use deadly force, and there was no critical need to prevent a known dangerous person from escaping and harming others."
The most important bit: "We conclude that under the totality of the circumstances a reasonable jury could find that the Officers' use of deadly force was unreasonable and therefore unconstitutional."
But Underwood won't get that chance. It's not because he doesn't have a plausible case; the court acknowledges the reverse. Rather, he will not have the right to ask a jury of his peers to consider it because neither the 11th Circuit nor the Supreme Court has litigated a case with almost identical facts.
"The Officers are entitled to qualified immunity because Underwood has not demonstrated that his rights were clearly established," wrote Wilson. "As an initial matter, Underwood does not point to a factually similar case, nor does he contend that a broader principle applies here. And probably for good reason, as this case is not directly analogous to other binding qualified immunity cases involving vehicles and the use of deadly force."
It's a prime example of the outsourcing of such matters to a few bigwigs on the federal judiciary as opposed to what the Constitution prescribes: jury trials. Legislated into existence by the Supreme Court, qualified immunity protects government agents from facing accountability even when the courts admit they violated the Constitution—a privilege not bestowed to anyone without government status. It has protected a cop who allegedly beat a subdued man in a brutal fashion, a cop who destroyed a man's vehicle during an illegal search for which he lied to get consent, and more than two dozen cops who blew up an innocent 78-year-old man's home during a SWAT raid that targeted the wrong house. It has shielded cops who have shot children, cops who assaulted and filed bogus charges against a man for standing outside his own home, and corrupt college administrators who flouted a student's First Amendment rights on campus.
Underwood's version of events was corroborated by testimony from Elizabeth Harrington, the woman who called 911 and watched from her porch as it unfolded. Meanwhile, the officers contend that Partridge only began shooting after Underwood accelerated. But the court highlights a problem: Partridge's testimony contradicts itself at certain turns and also fails to line up with Asarisi's statement.
"The district court should have recognized the inconsistencies within Officer Partridge's own testimony and between the Officers' testimony," said Wilson. "Of course, a jury could instead credit some of the Officers' testimony and come to the same conclusion as the district court—that the Officers' actions were reasonable. But these sorts of issues should not be decided [by the judiciary]." They should be up to a jury.
Underwood won't go before one. But could he file a suit against the city? He has to contend with Monell, a legal doctrine that shields municipalities from civil suits unless they had a concrete policy that directly led to the alleged misbehavior. In some ways, it's a standard even more rigorous than qualified immunity.
He lost there too. "Underwood does not provide evidence of either a pattern or knowledge of improper training," noted Wilson. "He only claims that both Officers were in 'cowboy mode' on the night of the incident." Whether or not a jury would have agreed such behavior merited a settlement for Underwood's injuries will remain a mystery.