Court Grants Qualified Immunity to Officer Who Did Not Wait for Warning Shot

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Sanzone v. Gray, (7th Cir. 2018)

Keith Koster’s friend called the police and asked them to check on Koster. The friend reported that Koster was vomiting and having trouble breathing. Officers responded with fire service paramedics. Koster’s apartment manager gave the officers a key in case Koster couldn’t open the door for them.

An officer unlocked the door and a paramedic called out to Koster, saying they were there to help him. Koster replied by yelling: “Don’t come in! If you enter my apartment I will shoot you.” The paramedic and the apartment manager said they saw a gun in Koster’s right hand.

An officer moved to the front and began to speak with Koster, who was holding his gun. A hostage negotiator arrived and took over the conversation. Koster made several requests, then said he was going to fire a warning shot. As Koster began to point the gun directly at the officers, the officer at the front ducked behind a shield. One officer fired a beanbag round and another officer fired three rounds at Koster’s head, killing him.

Koster’s sister sued. She claimed the officers should have recognized that Koster would have continued upward with the muzzle and fired a warning shot into the air (or into the apartment above? Or who knows where?). The court observed that Koster might also “have meant that he intended to attempt firing a bullet that would whiz past [the officer]’s ear.”

The court granted qualified immunity to the officer, resulting in dismissal of the lawsuit. The court held that the officer “did not need to wait and hope that Koster was a skilled marksman before taking action.” The trial judge had ruled that the officers were obligated to duck and take cover once Koster raised the gun at them. Simply not so, said the appellate court.

Cases like this prompt public safety leaders to ponder how much risk to take to save suicidal persons from themselves when other members of the public aren’t in harm’s way. For many, it’s a “damned if you do and damned if you don’t” proposition. Others see it as a moral duty versus a legal question. For more discussion, see Should I Stay or Should I Go? in the October 2017 issue of POLICE magazine.

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 three 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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