Bystanders Sue for Emotional Injury after Witnessing Police Shooting

Crane v. City of Arlington, 2022 WL 5073278 (5th Cir. 2022)

This is a case that raises lots of questions, and the question of who prevails won’t be answered here. It will likely be answered only after a difficult court trial. But the questions raised by the court, as well as the questions you may have about how the traffic stop was handled, may prompt thought and discussion with your peers. We’ll look at the facts in some detail to help you ponder how you would have acted in similar circumstances. Read the facts carefully.

Tavis Crane was driving with three passengers: Dwight Jefferson, Valencia Johnson, who was pregnant with Crane’s child, and Z.C., Crane’s two-year-old daughter. Jefferson was seated in the front passenger side seat, Johnson was seated in the rear driver side seat, and Z.C. was seated in the passenger side rear seat. While Crane was stopped at a traffic light, Officer Bowden pulled up behind him. After the light turned green, Crane pulled away from the intersection and Bowden saw an object being tossed from the passenger side window. Officer Bowden thought the object might be a crack pipe. She called for backup; Officer Roper responded.

Officer Bowden turned on her emergency lights and Crane pulled over. Officer Bowden approached the passenger side of the vehicle and asked Jefferson what he’d thrown out the window. Jefferson said he’d tossed a cigarette butt. Bowden asked Crane for his driver license and proof of insurance. Crane offered his state-issued identification card, explaining that he did not have his license with him.

Officer Bowden then noticed an object fall on the ground behind her, outside the window by Z.C. She recognized the object as the red top of a large plastic Christmas candy cane and realized the object that she had seen tossed from the car was the candy cane’s clear bottom half. Bowden laughed about the misunderstanding and handed the red piece back to Z.C. Officer Bowden returned to her car to perform a warrants check. She discovered Crane had warrants for five misdemeanors and a possible felony probation violation.

Officer Bowden called for more backup and confirmation of the warrants. While waiting for the other officers to arrive, Officer Bowden confirmed five misdemeanor warrants, but was still waiting for confirmation of the felony probation warrant. She began writing a citation for driving without a license.

The court held that witnessing the use of force is not enough: “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.”

Officer Johnson arrived at 2347. Bowden told Johnson the passengers had been cooperative and she wasn’t sure whether Crane knew he had active warrants. Officer Roper soon arrived. Bowden didn’t share the same information with him; Officer Roper knew only about Crane’s still-unconfirmed outstanding felony probation warrant.

All three officers walked up to Crane’s car at 2350. Crane had rolled up his window almost entirely. Officer Bowden stood next to Crane’s window; Officer Roper was behind Bowden, next to Valencia Johnson; and Officer Johnson stood on the passenger side, next to Jefferson. Officer Bowden asked Crane to step out of the car and told him about the outstanding warrants. Crane denied having warrants. Bowden told Crane if he did not get out of the car, he would face additional charges. Crane said he needed to get Z.C. home to her mother. Bowden asked if he could leave Z.C. with the other passengers and alternatively offered to call someone to pick her up. Crane refused, insisting he did not have any outstanding warrants and reiterating that he was not getting out of the car. Bowden told Crane she had confirmed the five warrants. Crane asked what the warrants were for, but Bowden had not learned the charges yet. Bowden told Crane, “I need you to step out of the car, honey. Tavis if you go and do something stupid then we are gonna be breaking windows, it’s gonna get crazy, it ain’t worth it.”

Officer Johnson ordered Jefferson (seated in the front passenger seat) to turn off the car and give him the key. Jefferson began moving his hand toward the key, but Crane told him to stop. Officer Roper then ordered Johnson (the pregnant back-seat passenger) to unlock the rear driver-side door and she did. Roper opened the door, drew his handgun, and ordered everyone to put their “f—ing hands up.” The three adults put their hands up. Roper pointed his pistol at Jefferson before entering the car, climbing over Johnson, and pointing his gun at Crane.

Here the accounts significantly diverge. The passengers state Officer Roper put his arm around Crane’s neck. Officer Roper says he grabbed Crane’s sweatshirt by the hood. All three officers continued to order Crane to open the door and turn the car off. Officer Johnson circled behind Crane’s car to move next to Bowden as she shouted, “Tavis, don’t do it!” The car engine began to rev, and the car shook as the brake lights turned on and off sporadically. Officer Bowden reached for Officer Roper in the back seat and told him three times to “get out” of the car. Officer Roper stayed put in the car. Officer Johnson broke the window next to Crane with his baton as Officer Bowden began to move toward the rear of the car.

Qualified immunity applies as long as the officer’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable officer would have known.

The passengers’ version is that Crane moved his hand to turn off the car when Officer Roper pointed his gun at Crane. They report Officer Roper shot Crane and his head fell backwards, the engine revved and the car lurched backward, striking Officer Bowden — by now behind the car — before moving forward and running over Bowden again and speeding off.

Officer Roper’s version holds that Crane shifted the car into gear while the two struggled, and that it was only after the car ran over Officer Bowden and after Officer Roper warned Crane he would “kill him” if Crane did not stop the car that Roper shot him twice. Roper said the first two shots “did not cause Crane to stop the vehicle, so he fired two other shots.” Roper later said he feared Crane might be armed, though no gun was found and none of the officers could see a gun even though they could see Crane clearly. Of course, he could have concealed a weapon.

After Officer Roper shot Crane, the car careened down the road and Roper took the keys out of the ignition and steered the car to a stop. Officer Johnson caught up in his squad car and told Roper to pull Crane from the driver seat and perform CPR. Officer Roper continued to shout and curse at Crane, asking why he had not stopped, but Crane was silent (because he was dead).

Crane’s mother sued on behalf of his estate and his children, while Jefferson, Johnson and Z.C. sued under a theory of bystander liability for the emotional injuries they claim to have resulted from witnessing the alleged excessive force. A trial court awarded summary judgment and dismissed all claims against the city and against Officer Roper. The plaintiffs appealed.

Let’s first consider the passengers’ claims as bystanders to a traumatic event. They essentially asserted they were the victims of negligent infliction of emotional distress, a tort recognized as a common law cause of action, but not a constitutional violation. The court held that witnessing the use of force is not enough: “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.” The passengers also claimed that Officer Roper used excessive force against them when he got into the car and pointed his gun at them. Courts have often held that pointing a gun can be reasonable given the circumstances and that “the momentary fear experienced” when an officer points a gun does not generally rise to the level of a constitutional violation. Thus, the passengers suffered no constitutional injury.

Now to the claim that Officer Roper used excessive force against Crane. The appellate court held summary judgment was not warranted because there were significant disputes about critical facts. At the summary judgment stage, the court is obliged to accept the version of facts most favorable to the moving party (almost always the plaintiff). The plaintiff’s version of events was that Officer Roper shot Crane while he was held in a chokehold in a parked car as he resisted arrest for misdemeanor warrants and a possible felony parole violation.

“Roper should have known he could not use deadly force on an unarmed man in a parked car.”

The appellate court needed to decide whether Officer Roper was entitled to qualified immunity. As we’ve said many times in Xiphos, qualified immunity applies as long as the officer’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable officer would have known. The constitutionality of the use of force turns on the Graham v. Connor factors. Applying those factors, the appellate court held a reasonable jury could conclude that Officer Roper did not have “a reasonable belief that he or the public was in imminent danger of death or serious bodily harm.”

In the Graham case, the Supreme Court instructed lower courts to always ask three questions to measure the lawfulness of a particular use of force: First, what was the severity of the crime the officer believed the suspect to have committed or be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape? The appellate court noted the “threat-of-harm factor typically predominates the analysis when deadly force has been deployed.”

Thus, the court’s first question was the degree of threat that Crane posed to the officers. As to Officer Roper’s claim that Crane could have had a gun, the court observed, “Roper could see if Crane was reaching for a gun, as could the other officers outside the vehicle, yet none of them—including Roper—reported a suspicion of a weapon. Roper could not have reasonably suspected that Crane had a weapon.” The court also cited the dispute over whether Roper shot Crane before or after the car began to move. The plaintiff claimed Crane pressed on the accelerator to relieve pressure from Roper’s chokehold, but that the car wasn’t in gear until after the first shots. The court was constrained to accept that the car was not a threat until it began to move, which did not occur until Roper shot Crane.

The court posed many other questions and observations. These are issues each of us should consider, including:

  • “The speed with which an officer resorts to force where … lesser force options are plainly available and obviously recommended by the situation.”
    • “Officer Bowden demonstrated an admirable attempt to negotiate with Crane.”
    • “Roper, on the other hand, shot Crane less than one minute after he drew his pistol and entered Crane’s backseat aside a pregnant woman and a two-year-old.”
    • “Bowden reached into the backseat to touch Roper, repeatedly urging Roper to get out of the car.”
  • What was the true severity of the crime at issue?
    • “Reasonable officers could debate the level of force required to effect an arrest given the severity of the violations at issue, but neither of the other officers felt the need to enter the car or draw their pistols to address the severity of the violation.”
    • The only confirmed warrants against Crane were for misdemeanors. A jury could reasonably find the degree of force the officers used was not justifiable under the circumstances.

The appellate court concluded, “Roper’s use of deadly force was unreasonable.” The court also held the law was sufficiently clear: “Roper should have known he could not use deadly force on an unarmed man in a parked car.” Again, remember the rules require the court to accept the version of facts most favorable to Crane. It may well be that a trial presents a very different picture of what happened and what Officer Roper did. Notwithstanding, the court’s questions raise difficult issues that officers and law enforcement trainers should carefully consider and learn from this tragic outcome.

Note: My colleagues Laura Scarry and Mike Ranalli recently presented a webinar, Officer Decision-Making: Why Qualified Immunity Isn’t a Good Guide, which explored why we shouldn’t rely on the protection of qualified immunity as the standard for making good decisions. View it on-demand at no cost.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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