police4aqi

Police, The Fourth Amendment, Qualified Immunity

Carjackers or police officers?

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Carjacking continues to be a thing.  Police officers being run over continues to be a thing.  Police officers claiming that someone tried to run them over without actually being run over continues to be an even bigger thing.  This week’s mid-week bonus case brings together these themes with a set of two opinions (Middle District of Florida and Eleventh Circuit) in a way that is likely to make these problems worse and not better.

Case:  Spencer v. City of Orlando, Court of Appeals, 11th Circuit 2018; Spencer v. City of Orlando, Dist. Court, MD Florida 2016

What happened:  Apparently unmarked police vehicles attempted to stop a car with three men, including the plaintiff* of this civil suit who was shot to death by police.  One of the men had a gun and there was another gun in the glovebox.  More specifically, the car stopped at first, but drove away again after the two unmarked police vehicles attempted to box it in, and the officer parked to the rear of the plaintiff’s vehicle approached plaintiff shining a flashlight at him.  Plaintiff then backed into the unmarked police vehicle parked behind him and then drove forward away from the scene.  The two unmarked police vehicles pursued and rammed plaintiff’s vehicle until it was stopped again, boxed in, and allegedly disabled.  One of the men (not the plaintiff) ran away from plaintiff’s vehicle with a gun and was shot by one of the police officers, but he did not die.  The driver was shot to death by the other police officer in the driver’s seat.  The third man in the car was not harmed.

Here is the way the District Court recounted the facts (this account was largely repeated in the Eleventh’s Circuit opinion on appeal):

On the evening of May 3, 2013, Orlando Police Department (“OPD”) officers Zambito and Evancoe were working with the Tactical Anti-Crime squad in an undercover Ford Explorer (“Explorer”) in the area of Kirkman and Raleigh Street in Orlando, Florida (“Area”). (Doc. 23-1, ¶¶ 3-4; Doc. 23-2, pp 3-4.) While conducting surveillance in the Area, Evancoe observed three African-American males (“Males”) pull into a 7-11 parking lot in a blue Hyundai (“Hyundai”).[2] (Doc. 23-2, p.4.) The Males were later identified as Marquis Spencer (“Decedent”), Ronmono Carson (“Carson”), Aaron Beavers (“Beavers”). According to Evancoe and Zambito (collectively, the “Defendant Officers”), the Males were acting suspiciously, so the Defendant Officers decided that they would “wait for [the Males] to leave the gas station, [] stop them, [and] see what [the Males were] up to.” (Id. at 4-5.) In the meantime, Evancoe called for backup, and OPD Officer Elio Florin (“Florin”) and his partner (“Bigelow”) responded to the call. (Id. at 5.)

Once the Males returned to their car and exited the parking lot, Evancoe observed the following violations of Florida law: (1) the Males did not put on their seatbelts;[3] and (2) Decedent, the driver, did not come to a complete stop when exiting the parking lot. (Id.; Doc. 23-1, ¶¶ 6-7.) Consequently, as Decedent turned southbound onto Kirkman Road, Zambito activated the emergency lights on the Explorer and initiated a traffic stop of the Hyundai in the turn lane at the intersection of Kirkman Road and Raleigh Street.[4] (Doc. 23-1, ¶ 8; Doc. 23-2, p. 5.) Zambito positioned the Explorer “closely behind” the Hyundai and Florin positioned his vehicle in front of the Hyundai, essentially creating a “soft block” on the Hyundai (“First Stop”). (Doc. 23-1, ¶ 9; Doc. 23-2, p. 21; Doc. 23-3, p. 13; see also Doc. 27-1, p. 11.)

Evancoe exited the Explorer with a flashlight in his hand and a gun in his holster. (Doc. 23-2, p. 11.) He was wearing a vest that said “police” in white letters. (Id.) As Evancoe approached the passenger side of the Hyundai, Decedent reversed the Hyundai towards Evancoe, hit the Explorer, and maneuvered around Florin’s vehicle to turn right onto Raleigh Street.[5] (Doc. 23-1, ¶¶ 11-12; Doc. 23-2, p. 6; Doc. 23-3, pp. 4, 7-8; Doc. 27-1, p. 12.) Evancoe returned to the Explorer, and Zambito and Florin engaged in the pursuit of the Hyundai. (Doc. 23-1, ¶ 13; Doc. 23-2, p. 21; Doc. 27-1, p. 13.) At the intersection of Raleigh Street and Resource Avenue, Zambito hit the rear of the Hyundai with the Explorer, causing the Hyundai to lose traction and hit Florin’s vehicle, which by that time was positioned slightly perpendicular to the front of the Hyundai. (Doc. 23-1, ¶¶ 13-14; Doc. 23-2, p. 21; Doc. 23-3, p. 16; Doc. 27-1, p. 15; see also Doc. 23-2, pp. 13-14.) At this point, the Hyundai was “pinned” between the Explorer and Florin’s vehicle, and all three vehicles were stopped (“Second Stop”). (Doc. 23-1, ¶¶ 14-15.)

Immediately: (1) Evancoe exited the passenger side of the Explorer and moved toward the passenger side of the Hyundai; (2) Florin exited his vehicle; and (3) Carson fled from the Hyundai with a gun. (Id. ¶ 15; Doc. 23-2, pp. 14-15, 21; Doc. 23-3, pp. 4, 8; Doc. 27-1, pp. 16, 19.) As Florin attempted to exit his vehicle, Zambito heard the Hyundai’s engine rev and saw the Hyundai move towards Florin. (Doc. 23-1, ¶ 15; see also Doc. 23-2, p. 21.) After losing sight of Florin and hearing the Hyundai engine rev again, Zambito “fired several rounds … to prevent Florin from being killed.” (Doc. 23-1, ¶¶ 17-18.) Evancoe heard the gunshots and saw Carson running from the Hyundai with a gun in his hand. (Doc. 23-2, pp. 7, 15-16.)

Evancoe then approached the driver side of the Hyundai, saw Decedent sitting in the driver seat with his left hand on the wheel and his right hand out of sight, and ordered Decedent not to move. (Id. at 7, 17-18.) Nevertheless, Decedent lowered his hands off of the steering wheel, prompting Evancoe to fire six shots toward Decedent. (Id. at 7-8, 18.) “[A]lmost immediately after,” Evancoe heard another round of gunshots between Bigelow and Carson—Bigelow shot Carson once from behind. (Id. at 19; Doc. 27-1, pp. 25, 28.)

Evancoe instructed Beavers—who was in the backseat—to exit the Hyundai, and he obliged. (Doc. 23-2, p. 8.) Evancoe and other OPD officers extracted Decedent from the car and initiated chest compressions, but Decedent died on the scene. (Id. at 9.) A subsequent search of the Hyundai revealed an additional loaded gun in the glove box. (Doc. 23-4, p. 2.)

Decision:  QI for the police, no liability.

First criticism:  Did the driver know that it was police officers or did he think he was being carjacked?

The facts suggest that the driver may not have known he was being stopped by police.  On the one hand, one of the police cars had “emergency lights,” but no mention is made of Officer Evancoe’s Ford Explorer or Officer Florin’s truck being marked.  Moreover, the stop was rather different than a traditional stop in that the Explorer and truck immediately, albeit unsuccessfully, blocked plaintiff’s Hyundai in the space where plaintiff had stopped.  Moreover, plaintiff was being stopped for:  (i) an alleged seatbelt violation, and (ii) not coming to a full stop when exiting a parking lot (one of the survivors of the shooting says that they did stop).  Even if these violations are true, it does no seem like the type of stop that should be effected by two unmarked police vehicles.  Also, there is no mention in the court opinions of the use of a siren or a loudspeaker — those expedients could have gone a long way toward dispelling the appearance of a carjacking.  So, even before Officer Evancoe got out of his Ford Explorer, things probably would have seemed hinky to the plaintiff.

Here is how the Officer Evancoe approached plaintiff’s vehicle:  “Evancoe exited the Explorer with a flashlight in his hand and a gun in his holster. . . . He was wearing a vest that said ‘police” in white letters.”  So, Evancoe was apparently not in full uniform.  We don’t know whether he was shining the flashlight at the eyes of the people in the car, which is poor writing and issue spotting on the part of the courts (district and appellate).  We don’t know how powerful the flashlight was, which is, again, poor writing and issue spotting on the part of the courts.  I am going to fill this informational vacuum with some reasonable speculation, to wit, Evancoe was probably holding a powerful flashlight in front of his torso, and the plaintiff probably could not see the vest and could probably not see the printing on the vest.  In other words, Officers Evancoe and Florin staged something that probably looked, from the plaintiff’s perspective, just like a carjacking.

There should be civil liability for damages that arise proximately out of this special kind of police recklessness to deter this kind of police conduct in the future.  One thing is to not do traffic stops with unmarked (or lightly marked) police vehicles.  Another thing is to use that loudspeaker — that is something that a bad guy is unlikely to have or use in a jacking.

Second criticism:  Why are officers getting out of their nice safe trucks and (allegedly) into the path of the suspect’s vehicle?

It is pretty clear from the opinion that when plaintiff fled the first stop, he was trying to get out of a tight situation and not to run over Officer Evancoe.  However, Evancoe’s legal team apparently presented this to the court as if plaintiff were trying to run over Evancoe, and the courts bought it.  This suggests that it is okay for police officers to lie about suspects attempting to run them over, and that is not okay — it leads to shootings.  Apparently the reason this attempted run over was relevant because it justified the police pursuit, vehicle ramming and eventual police shooting.  Well, it didn’t happen.

Why am I so sure it didn’t happen?  Plaintiff was boxed in between two vehicles.  The District Court opinion states:  “Decedent reversed the Hyundai towards Evancoe, hit the Explorer, and maneuvered around Florin’s vehicle to turn right onto Raleigh Street.”  If the plaintiff had reversed his Hyundai towards Evancoe then that would mean that Evancoe was standing between the Explorer’s front end and the Hundai’s rear end.  His legs would have been crushed between the vehicles.  It would have been an Officer Evancoe sandwich.  But, of course, that didn’t happen.  Evancoe was off to the side somewhere and never in the path of plaintiff’s Hyundai.  More bad writing and police over-indulgence on the part of the courts.

Things get worse on the second, and final, stop.  Here is the key passage in the District Court opinion:

At the intersection of Raleigh Street and Resource Avenue, Zambito hit the rear of the Hyundai with the Explorer, causing the Hyundai to lose traction and hit Florin’s vehicle, which by that time was positioned slightly perpendicular to the front of the Hyundai.  . . .  At this point, the Hyundai was “pinned” between the Explorer and Florin’s [truck], and all three vehicles were stopped . . . As Florin attempted to exit his vehicle, Zambito heard the Hyundai’s engine rev and saw the Hyundai move towards Florin. . . .  After losing sight of Florin and hearing the Hyundai engine rev again, Zambito “fired several rounds … to prevent Florin from being killed.

What does this even mean??!!??!  If the Hyundai was pinned, then how could it move toward Officer Florin as he was exiting the vehicle?  Why was Officer Florin exiting a vehicle into the path the Hyundai would have taken even if it could move?  What does “slightly perpendicular” mean?  How far was Florin from the front end of the Hyundai?  Wouldn’t the fact that Zambito lost sight of Florin mean that Florin was out of danger of being hit by the Hyundai (assuming was in danger to begin with)?  Even if Florin were in danger of being hit by the Hyundai, why would shooting the driver make Officer Florin safer — it seems like it would increase incentive on the driver’s part to try to get out of there fast, especially if Officer Zambito missed?  Did Officer Zambito miss?  Incredibly the opinion does not even say whether the plaintiff was killed by Officer Zambito, Officer Evancoe or a combination of both of them.

As much as this leaves unclear, it does leave a clear bottom line — if police officers go into, or near the path of a potentially moving car then they, or their partners, can use this as an excuse to exercise an itchy trigger finger.  The courts’ forgiveness of this gambit is counterproductive, a bit sickening and obscured by lousy writing.

Miscellaneous criticisms:  Opinions are unclear about whether one of the suspects, named Carson, shot at a police officer, equivocally stating as follows:  “Evancoe heard a round of gunfire between [Officer] Bigelow and Carson. Bigelow shot Carson once from behind.”  Opinions are unclear about why it is illegal, in Florida, to fail to come to a full stop when leaving a parking lot and entering the road (maybe it is, but neither opinion cites to the statute and I doubt it is common knowledge).  Opinions state that the wrongful death claims rely on a “negligence theory” when they clearly rely on a recklessness theory.  I could go on, but, if you have read this far then you get the point . . .

FOOTNOTES:

    • * Technically the “plaintiff” was the decedent’s mother because the driver died by police bullet(s), but this blog entry will refer to the decedent as the “plaintiff” for clarity of discussion reasons.

Written by Burgers Allday

March 8, 2018 at 6:41 pm

Posted in Uncategorized

5 Responses

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  1. […] In unmarked cars, Orlando, Fla. officers box in car whose occupants are suspected of not wearing seatbelts; the driver drives off; the police catch up, ram the car, and shoot the driver dead. Allegation: Contrary to the officers’ testimony, the driver wasn’t about to run over an officer when he was killed; he couldn’t have, as the car’s engine had died after police rammed the vehicle. Eleventh Circuit: Qualified immunity. (H/t: Police4aqi.) […]

  2. […] In unmarked cars, Orlando, Fla. officers box in car whose occupants are suspected of not wearing seatbelts; the driver drives off; the police catch up, ram the car, and shoot the driver dead. Allegation: Contrary to the officers’ testimony, the driver wasn’t about to run over an officer when he was killed; he couldn’t have, as the car’s engine had died after police rammed the vehicle. Eleventh Circuit: Qualified immunity. (H/t: Police4aqi.) […]

  3. […] engine had died after police rammed the vehicle. Eleventh Circuit: Qualified immunity. (H/t: Police4aqi.)” [John K. Ross, “Short […]

  4. […] engine had died after police rammed the vehicle. Eleventh Circuit: Qualified immunity. (H/t: Police4aqi.)” [John K. Ross, “Short […]


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