Does Failure to Warn Before Shooting Equal Liability?

by | February 24, 2022

Powell v. Snook, 2022 WL 363887 (11th Cir. 2022)

Just before midnight, a 911 caller reported hearing a woman’s screams and three gunshots. The caller said the noises were coming from “a few houses down” from 736 Swan Lake Road. She also claimed to have previously called 911 “because they were fighting so bad.” The 911 operator searched the 911 call history for 736 Swan Lake but found no record of an earlier call. The caller said the noise came from “the second or third house past hers towards Fairview Road.”

Though the caller gave some additional clarifying information, the dispatcher sent officers to 736 Swan Lake, explaining that, if the officers were “looking at this location, it’s two houses down on the right, maybe three houses.” Officers Snook, Davis and Ramsey responded. While en route, Officer Snook asked dispatch to find a more precise address for the location of the disturbance. The first dispatcher had ended her shift at midnight; the replacement dispatcher replied that dispatch thought it was “either 690 or 634.” The officers asked the dispatcher to call the complainant back and get more information about the location of occurrence. The dispatcher did so, again guiding the officers to 690 Swan Lake.

The officers arrived at 690 Swan Lake and saw it was set far back from the street and had a long driveway. Officer Snook took his rifle in hand, believing the officers were responding to a domestic violence call with shots fired. The officers asked for a call history and registration check for cars parked at the house. They learned Sharon and David Powell lived there and that prior calls involved an alarm and an ambulance call. Officer Snook knew that alarm or ambulance calls sometimes grew out of domestic violence incidents, though he also learned officers had not been sent to any previous domestic violence incidents at the Powell home.

The officers crept toward the house and Officer Snook shone his flashlight into a window. Mrs. Powell heard her dogs barking and awakened her husband. Mr. Powell went to the laundry room door, looked out the window and told his wife he saw someone outside. He put on his pants and grabbed a handgun. He walked into an attached garage, his wife following, and opened the garage door, causing the garage light to come on. All the other house lights were still off.

Mr. Powell looked around and raised his pistol hand toward Officer Snook, shielded in the darkness. Believing he was about to be shot, Officer Snook fired three shots from his rifle, hitting Mr. Powell, who died the following day. Mrs. Powell testified the officers never identified themselves as police officers and never spoke any warnings prior to shooting. She sued the officers, claiming excessive force. The trial court granted summary judgment to Officer Snook, ruling he was entitled to qualified immunity.

“The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

In 1985, the United States Supreme Court said that an officer should give a warning where feasible before using deadly force (Tennessee v. Garner, 471 U.S. 1 (1985)). In this case, Mrs. Powell argued a warning was constitutionally required prior to shooting. In other words, does it amount to excessive force for an officer to shoot someone who was pointing a gun at him, without warning the person first?

The court of appeals cited existing court ruling that the “law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.” The court’s prior decisions hold that an officer may use deadly force when he “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others or that he has committed a crime involving the infliction or threatened infliction of serious physical harm; reasonably believes that the use of deadly force was necessary to prevent escape; and has given some warning about the possible use of deadly force, if feasible.” An officer is “not required to wait and hope for the best.”

The court noted Officer Snook refrained from giving a warning “to wait and see what Mr. Powell did with the pistol before Officer Snook drew attention to himself and potentially escalated the situation by shouting a warning.” The court also observed that “in hindsight, that decision may have been a mistake.” Nonetheless, the Supreme Court rejected hindsight analysis in Graham v. Connor (490 U.S. 386 (1989)), holding “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

The court carefully considered the circumstances as reasonably believed by Officer Snook and the other two officers. Acknowledging this case involves tragic circumstances, the court held an officer facing the same circumstances as Officer Snook “during the rapidly unfolding events on that dark night reasonably could have believed that the man raising a pistol in his direction was about to shoot him.” As such, he could lawfully “respond with deadly force to protect himself.” The court decidedly explained, “The shooting was tragic, as such shootings always are, but tragedy does not equate with unreasonableness” under clearly established law.

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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