A split panel of federal appeals court judges denied qualified immunity to a sheriff’s deputy who shot eight times at a trailer home in Tennessee in 2018. As a result of the ruling, the homeowners’ civil rights lawsuit against the deputy can proceed.
On Aug. 21, 2018, around 9:15 p.m., two Cheatham County, Tennessee sheriff’s deputies were dispatched to a private home to investigate two 9-1-1 hang-ups placed via cell phone. James Douglas Fox and Chris Austin arrived at the home of Mark Campbell and Sherrie Campbell by car. The Campbells were known to the sheriff’s office, and later, Sheriff Mike Breedlove told reporters about Mark Campbell, “He just hates law enforcement. He hates anyone in authority.”
On arrival, Fox and Austin had headlights pointed toward the house, but did not have emergency lights on. Bodycam footage shows that Fox walked up onto the small porch and knocked three times on the door without announcing himself as law enforcement. From inside, Mark Campbell asked, “You got a gun?”
Fox then unholstered his gun, walked near Austin. As detailed by the court, the following exchange occurred between Campbell and the officer through the closed door:
Fox: “Mark… come on out Mark, what’s up man?”
Campbell: “You got a gun?”
Fox: “What’s going on Mark?”
Campbell: “I got one too.”
At this point, Fox drew his gun and walked behind Austin. Campbell then opened the door. Fox turned quickly back toward the door and asked, “Do what Mark?” before he immediately fired two shots toward the door.
After the two shots were fired, video shows Austin as he “trips or jumps to the ground.” Fox asked “You good?” before firing another six shots toward the door in rapid succession. No one was hit by the gunfire.
After the shots, Campbell fell to the floor and kicked the door shut. He then yelled to his wife, Sherrie, who had been sleeping. Sherrie then called 9-1-1. Campbell yelled profanities through the closed door.
Meanwhile, the officers on scene reported over the radio that shots were fired. Shortly thereafter, Campbell walked onto his porch “holding a flat reflective rectangular item.” The officers yelled for Campbell to get on the ground and show his hands. Campbell refused to get on the ground, yelled that he was holding his phone, told officers “to shoot him,” then returned inside his home.
Thereafter, several other officers arrived on the scene. One officer arrested Campbell, and Campbell was later charged with two counts of aggravated assault. Both counts were ultimately dismissed.
After Campbell was arrested, Fox, Austin, and a detective entered and searched the home while they detained Sherrie. No firearms were found in the home.
Court findings detail the officers’ position on what they believed was happening during the shooting:
The parties dispute what the officers saw when Mark began to open the door, and the video footage does not resolve the dispute. Mark says he may have had a cell phone in his hand, but not a gun. Both officers contend they thought Mark had a gun. However, there is evidence that on the evening of the incident, the officers did not know what, if anything, Mark was holding.
Mark and Sherrie Campbell sued Fox in his individual capacity for excessive use of force under 42 U.S.C. § 1983. The officer argued that he was entitled to qualified immunity on two grounds: 1) he did not “seize” the Campbells within the meaning of the Fourth Amendment; and 2) his use of force was objectively reasonable.
Qualified immunity is a judge-created doctrine that shields state law enforcement officers from liability in civil lawsuits. Unless a plaintiff can show that an officer deprived them of a right which was “clearly established” by case law or statute, the officer is immune from the claim.
The case was heard in district court by U.S. District Judge Waverly D. Crenshaw Jr., a Barack Obama appointee. Crenshaw disagreed with both of the officers’ arguments and refused to apply qualified immunity to shield Fox from civil liability.
Fox appealed Crenshaw’s decision to the U.S. Court of Appeals for the Sixth Circuit, and a three-judge panel of the appellate court voted 2-1 to affirm the ruling. As a result, Campbell’s lawsuit can proceed against Fox.
The three judges who considered the case were U.S. Circuit Judges Danny J. Boggs (a Ronald Reagan appointee), Julia Smith Gibbons (a George W. Bush appointee), and John B. Nalbandian (a Donald Trump appointee). Gibbons authored the opinion for the two-member majority which included Boggs.
Gibbons first addressed Fox’s argument that the shots fired did not constitute a Fourth Amendment “seizure” for purposes of qualified immunity.
“In view of all the circumstances here, a reasonable person would not believe that he or she was free to leave a house while an officer repeatedly fired at the front door,” wrote Gibbons, rejecting the deputy’s position. “[T]he Campbells were not ‘on the loose,'” continued Gibbons, “but rather confined to their home because of Fox’s show of authority.”
Gibbons also rejected Fox’s argument that Campbell’s ultimate exit from his home proves that he had not been “seized.” She reasoned that “a seizure is ‘a single act, and not a continuous fact,'” and that therefore, “an individual may be seized for a brief time despite later demonstrating freedom of movement.” As to the relevance of Campbell’s wife remaining inside the home, Gibbons found, “By shooting at the house, Fox seized everyone inside, including Sherrie.”
Gibbons next turned to the matter of whether a reasonable jury could find that Fox’s use of force had been excessive. Because the case is at the pre-trial summary judgment phase, the court must view the facts in the light most favorable to Campbell. In doing so, the court found that “a reasonable officer would not have believed deadly force was justified, as there was no probable cause to believe that Mark posed a threat to anyone’s safety simply by virtue of informing the officers that he had a gun and then opening the door as they asked him to do.” The mere presence of a gun, said Gibbons, is not enough to justify deadly force. “Rather, there must be additional indicia that the safety of the officer or others is at risk,” Gibbons wrote.
As to the matter of whether those rights the Campbells claimed were violated were “clearly established” rights for purposes of qualified immunity, Gibbons found that the couple’s seizure had indeed been “clearly established.” Fox, said the court, should certainly have known that his conduct was inappropriate.
When Fox fired his weapon, he knew one of two things would occur: either he would hit someone, or he would not. If he did shoot someone, then there is clearly established law that this is a seizure. If he missed, then it was clearly established that a seizure occurs if a reasonable person would have believed he was not free to leave in response to Fox’s gunshots.
“The ‘fortuity that [Fox’s] shot[s] failed to strike [the Campbells]’ does not take this case out of the Fourth Amendment’s protection against unreasonable seizures,” the judge continued. Gibbons acknowledged that there is a genuine dispute of material fact over what the officers believed on the night of the shooting, but that matter is one for fact-finders at trial, and not for the appellate court at the qualified immunity stage.
Nalbandian penned a separate dissent in which he argued that Fox’s shots had not constituted a seizure under the Fourth Amendment, and that even if it were a seizure, it was reasonable. Nalbandian wrote that he would have given Fox qualified immunity, because Campbell’s behavior showed that he was not constrained by the officers.
“Mark felt free enough to reemerge onto his front porch and yell profanities at the officers, asking them to shoot him,” then he “declined to follow the officers’ orders to get on the ground and show his hands,” Nalbandian noted.
Nalbandian continued, emphasizing Campbell had been able to move freely even after Fox’s shots were fired. “Mark was free to leave his home, and we know this because he in fact did,” said Nalbandian. Campbell “yelled at the officers from his front porch and disobeyed orders to get on the ground,” then had a “backyard jaunt” before flouting Fox’s ineffective “show of authority,” detailed Nalbandian.
Similarly, the judge concluded that Sherrie was also not seized, because it had been her husband who told her to stay in the house — not the officer.
On the issue of whether Fox violated a “clearly established right,” Nalbandian said that Fox could not possibly have been on notice that his actions violated an existing right. Because no Supreme Court case addresses precisely this scenario, reasoned Nalbandian, Fox is entitled to immunity from the Campbells’ claims.
Nalbandian went on to offer an entirely alternative argument as well. Even if Fox’s shooting had constituted a seizure, that shooting was objectively reasonable. It does not matter that Campbell did not actually have a gun, reasoned Nalbandian. Rather, what matters is that the officers thought Campbell had a gun. Given that Fox was in close physical proximity to Campbell, danger was afoot said the judge. “These kinds of split-second decisions are ripe for second-guessing, but we must resist that temptation,” he continued.
Qualified immunity, the subject of several recent cases heard by the U.S. Supreme Court, has frequently been criticized as depriving police brutality victims of proper legal recourse. Justice Clarence Thomas has repeatedly suggested that the time has come for a complete re-thinking of qualified immunity, as the concept was originally instituted as a means of enforcing the Reconstruction-era Thirteenth, Fourteenth, and Fifteenth Amendments — and not as a filter for the kind of excessive force cases more common to the current era.
Law&Crime reached out to attorneys for the parties for comment.
[screengrab via WTFV]
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