police4aqi

Police, The Fourth Amendment, Qualified Immunity

Court Re-Tells Of The Billy Shane Harrison / Chance Oxner Slaying Of Jonathan Ayers

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Case: Singletary v. Ludwig, Dist. Court, MD Florida 2014

Quote:

Recently, the Eleventh Circuit affirmed the denial of summary judgment in an excessive force case with facts similar to those in the instant case. In Ayers v. Harrison, 2:10-CV-32-RWS, 2012 WL 529946 (N.D. Ga. Feb. 17, 2012) aff’d in part, 506 F. App’x 883 (11th Cir. 2013).[12] In that case a group of undercover police officers saw Jonathan Ayers give $20 to a known prostitute and drug dealer and then drive away. Sometime thereafter, the officers found themselves in traffic behind Ayers. The officers were in plain clothes and were driving an unmarked Cadillac Escalade.

When Ayers pulled into a gas station, the officers pulled in behind him. Officer Harrison jumped out of the car and then, without identifying himself, drew his gun and approached Ayers’ passenger window. Once there, he either waived [sic] the gun at Ayers or tapped on the glass while telling Ayers to get out of the car.

According to a statement Ayers made in the hospital after his arrest, when he saw the gun, he thought he was being robbed and tried to escape. He reversed his vehicle around the unmarked police car. As he did so, a second plain-clothed officer, Oxner, jumped into his path. Oxner, who was close enough to slap Ayers’ car, had to jump out of the way to avoid being hit.

Harrison followed the vehicle and fired a shot, hitting the passenger side door. Ayers put the car in drive, turning the wheels away from Harrison and toward the roadway. Harrison then fired a second shot, which hit Ayers. Ayers crashed his vehicle and was taken to the hospital, where he died shortly thereafter from the gunshot wound. Ayers’ estate filed a Section 1983 claim alleging, inter alia, that Harrison used excessive force. In denying Harrison’s motion for summary judgment on qualified immunity grounds, the district court stated:

At the time Harrison shot and killed Ayers, Harrison had no probable cause to believe that Ayers had committed a crime. Further, Harrison did not announce that he was a police officer, was in plain clothes, and came out of an unmarked Escalade—which had quickly approached—with his gun drawn. In fact, even though the Defendants called a uniformed officer to the scene, Harrison did not wait on him and proceeded to confront Ayers anyway.

Moreover, Harrison elected to confront Ayers in such a fashion even though he had already obtained his vehicle tag number and could have, instead, followed Ayers until the uniformed officer could catch up, or he could have simply waited to question him at his home. Defendants cannot claim the protection of qualified immunity when their own objectively unreasonable actions created the very risk that generated the eventual use of deadly force. Taking the facts most favorable to the Plaintiff, the Court cannot say as a matter of law that a reasonable officer would have shot Ayers.
This analysis does not change because Ayers was trying to flee the scene in a motor vehicle and almost ran over Oxner. First, the Court cannot say that Oxner did not run behind the clear trajectory of the moving vehicle, putting himself in harm’s way. Nor can the Court say based upon the video that Ayers even saw Oxner or would have been able to stop to prevent the encounter. But, from the video, it appears that Harrison could have seen Oxner after Oxner hit Ayers’ vehicle and before shots were fired. Thus, self-defense of others would have been improper. Moreover, as Plaintiff’s expert noted, Ayers’ tires were turned away from Harrison when he fired the second fatal shot; Harrison was not in danger. All of this is exacerbated by the fact that Harrison and Oxner continued to pursue Ayers when he was attempting to flee the scene and was not known to be dangerous.

Ayers, 2:10-CV-32-RWS, 2012 WL 529946 at *6-7 (citations and quotations omitted).

The parallels to the instant case are obvious. The officers had not seen any weapons in or threatening gestures from the occupants of the vehicle. Although the officers did have probable cause to believe that at least one occupant of the Toyota intended to commit a crime, that crime was a minor, non-violent drug offense — one for which no pursuit was planned if the suspects fled. And taking Singletary’s and Lechner’s testimony as true, the officers did not clearly identify themselves or wait for the nearby marked police units to arrive before confronting the suspects.

In reviewing the excessive force claim in Ayers, the Eleventh Circuit stated:

At the time Officer Harrison fired the fatal shot, under the facts most favorable to Plaintiff, neither Officer Harrison nor anyone else present at the scene faced an immediate threat of harm from Ayers, and there was no indication that Ayers posed a danger to others if allowed to drive away.. . .

The same holds true here. Under the facts most favorable to Singletary, Vargas was alongside the Toyota when he fired, and the Toyota had stopped. Therefore there was no immediate threat of harm to him or anyone else at the scene.

Comment: I wonder whether any of the judges realize that they are discussing the second time that Chance Oxner was “hit” by a “fleeing” vehicle:

http://news.google.com/newspapers?nid=348&dat=20041024&id=Zd8vAAAAIBAJ&sjid=CzwDAAAAIBAJ&pg=2369,2596973

It appears that the first time he pulled his little stunt, no one scrutinized it very much. I wonder what the 11th Circuit panel would have made of this news item last year when hearing the appeal in the Jonathan Ayers case.

Written by Burgers Allday

September 27, 2014 at 11:28 am

Posted in Uncategorized

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