Partridge v. City of Benton, Arkansas, 2023 WL 3940536 (8th Cir. 2023)
Piper Partridge called police to report her teenage son, Keagan, had gone into the woods holding a gun and threatening suicide. She told officers Keagan had ingested cough syrup and possibly marijuana, and that he was depressed after being suspended from school earlier that morning. Three officers found Keagan alone by a riverbank. Only Officer Ellison, about 45 feet from Keagan, had a clear view.
Ellison found Keagan partially turned away from him. He commanded Keagan to show his hands. When Keagan turned toward Officer Ellison, he was holding a gun in his right hand, which was down at his side. Officer Ellison drew his weapon and shouted at Keagan to drop the gun. Keagan said nothing but moved the gun and pointed it at his temple. Ellison continued commanding him to drop the gun. Keagan moved the gun and Ellison fired three times, killing Keagan.
Keagan’s parents sued, claiming Keagan never pointed the gun at the officer, nor did he speak with the officers or attempt to flee. They alleged Keagan was pulling the gun away from his head to comply with Officer Ellison’s orders to drop the gun. The trial court granted the officers’ motion for summary judgment. Appealing the grant of summary judgment, the parents argued the parties genuinely dispute how Keagan moved the gun before being shot and that this dispute is material.
A forensic pathologist testified at the trial court that it was “highly unlikely” Keagan pointed his gun at the officers before being shot. The pathologist testified that his interpretation of the autopsy report showed it would have required “a very awkward, highly atypical, unnatural twisting of the wrist” for Keagan to point the gun at the officers. While Keagan’s pointing his gun at the officers may have been “anatomically possible,” it would have required “a very abnormal movement.”
Countering the pathologist’s opinion, the defendants pointed out there was no eyewitness testimony that Keagan did not point his gun at them. However, the appellate court did not equate a lack of eyewitness testimony with a lack of evidence. The court held a jury could believe the pathologist’s testimony, which would support a reasonable inference that Keagan did not point his gun at the officers: “That suffices to survive summary judgment.”
“It is almost as if cops watch commands on tv shows and those commands creep into police training without much thought. If someone isn’t pointing their gun at us, is there really an urgency to give a command to drop it?”
The court opined a jury could conclude that Keagan “moved his gun in compliance with commands to drop his gun.” Additionally, the officers offered conflicting statements about the shooting. Two officers’ reports described Keagan pointing his gun, though they later said they could not see Keagan in the moment before he was shot. Officer Ellison could not say whether Keagan pointed his gun or that “just the movement” of Keagan’s arm prompted him to fire. The court observed that a “jury could rationally question the officers’ recall given the numerous—and admitted—inaccuracies and inconsistencies about everything from the timing of the incident (were shots fired five seconds or “milliseconds” after Keagan raised his arm?), to the officers’ distance from Keagan (were officers 40 feet away or 45 yards?), to Keagan’s arm position when he was shot.”
The dissent argued the majority “sets the bar too high. Our cases do not require an armed individual to take direct aim before officers can reasonably use deadly force. Instead, a ‘menacing action’ with a firearm is sufficient so long as such action provides probable cause to believe that the suspect poses an immediate deadly threat.”
Whether one sees this case as a legal close call or not, there are two important takeaways. First, smart tacticians advise giving commands by directing concise, discrete movements. Rather than the all-too-frequent situation of potentially contradictory commands (“don’t move,” “raise your hands,” “freeze,” “show me your hands”), break the desired action into small segments and give the commands in step-by-step sequence. Use commands the subject can reasonably follow that are aimed at keeping the muzzle pointed away from officers. One veteran SWAT operator commented: “It is almost as if cops watch commands on tv shows and those commands creep into police training without much thought. If someone isn’t pointing their gun at us, is there really an urgency to give a command to drop it?” Consider the following sequence of commands:
- “For your safety I don’t want you to point the gun at me.” Make it clear what you don’t want the subject to do.
- “I’m going to give you some directions.”
- “Listen to my directions, listen to what I say and then wait until I tell you to ‘do it now.’”
- “Please don’t move until I ask you to do so.” This is really a good time to “talk nice!” with a firm voice.
- “Then I won’t be worried that you’re going to shoot someone else.”
- “Do you know what the slide (or barrel) is?”
- “Reach up with the opposite hand and grasp the slide/barrel with your opposite (consider specifying left or right) hand and then bring the gun down with your opposite (left or right) hand.”
- “Do it now.”
- “Hold the gun in your opposite (identify right or left) hand. Keeping the barrel pointed toward the ground, move the gun away from (your head or other position).”
- “Do it now.”
- “Next, I want you to drop the gun on the ground.”
- “Do it now.”
- Then give the subject directions to step away, move toward prone control, etc.
In contrast, consider the notorious case of Tyre Nichols, where officers allegedly shouted at Nichols to show his hands even as officers were controlling his hands. They allegedly told Nichols to “get on the ground” even after he had been taken to the ground.
The second lesson from this case relates to the relatively minor inconsistencies related to tangential details. Police departments owe it to the public and to officers to ensure that those entrusted with investigating officer-involved critical incidents are highly trained, skilled investigators who can identify essential evidence, interview witnesses properly, and even help avoid inconsistencies generated from multiple interviews and reports prompted by discrepancies in questioning.
