Police, The Fourth Amendment, Qualified Immunity

Johnstown, PA car shooting and new Pittsburgh, PA and WV car shooting cases

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This week in Johnstown, PA, three unidentified policeman shot and killed the driver of a vehicle that was taking a gunshot wound victim to the hospital.  The driver was allegedly shot and killed for approaching a police blockade of the road and ignoring verbal warnings (?!) not to approach the police blockade of the road. The fatally wounded driver did not end up hitting any of the policemen or vehicles at the blockade.

Against this background, a Pennsylvania federal district court decided a qi motion in connection with a case where Pittsburgh police shot a driver to death in 2009. ZION v. NASSAN (W.D.Pa. 6-27-2012). Here is the moneyquote from that decision:

Even where an officer is initially justified in using force, he or she may not continue to use such force after it has become evident that the threat justifying the force has vanished. A threat justifying an initial deployment of force can sometimes vanish within a matter of seconds. Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (holding that force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated). A passing risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect. The relevant question, therefore, is whether Haniotakis posed a danger to the officers or others when Nassan and Donnelly discharged their weapons. The plaintiffs aver that shots were fired when Haniotakis was fifty yards in front of Nassan and Donnelly. They further allege that Haniotakis was driving the SUV in a slow, nonthreatening way at the time of the shooting. Even if it is assumed that Haniotakis posed a threat to others when he crashed the SUV into a parked car, it does not necessarily follow that the threat continued to exist when Nassan and Donnelly opened fire. It is also worth noting that the act of shooting Haniotakis while he was driving the SUV could have placed other individuals in much greater danger than they would have been in had Haniotakis’ flight been permitted to continue. Vaughan v. Cox, 343 F.3d 1323, 1332-33 (11th Cir. 2003) (remarking that the act of shooting the fleeing driver of a fast-moving vehicle would transform the risk of an accident on the highway into a virtual certainty, thereby increasing the very danger that the shooting was supposed to eliminate).

(some internal quotation marks and some citations omitted to enhance readability)

The court went on to rule that plaintiffs’ would be entitled to discovery from the police in this case to better ascertain whether the driver was really trying to ram the Pittsburgh policemen with his vehicle.

In yet another car shooting case this week, a West Virginia federal district court denied a policeman qi for shooting a driver in the head. KREIN v. WEST VIRGINIA STATE POLICE (S.D.W.Va. 6-27-2012) (“[T]he [alleged] fact that Trooper Price discharged his service weapon through the passenger side window, striking plaintiff in the head, makes it evident that the trooper was no longer in the direct path of plaintiff’s vehicle. Instead, the complaint alleges that plaintiff was using his vehicle ‘to get out,’ and offers no indication that plaintiff posed a significant threat to either trooper or any other person.”)

Written by Burgers Allday

June 30, 2012 at 6:52 am

Posted in Uncategorized

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