Estate of Rahim v. Doe, 2022 WL 11602542 (1st Cir. 2022)
Joint Terrorism Task Force officers shot and killed Usaamah Rahim, a suspected terrorist with alleged connections to the Islamic State of Iraq and the Levant (“ISIL”). Officers intercepted a phone call between Rahim and his co-conspirators, in which Rahim expressed plans to “go after those boys in blue” because they were the “easiest target.” Rahim had already given his “bi’ah [allegiance].” Thus, this would be more than a “vigilante attack”: The attack would be “random” and “might even happen today…If not today, then tomorrow.” Rahim expressed his belief that “Jihad is a way out of this dunayh [worldly life],” and discussed plans to empty his bank account and prepare a will.
Task Force officers had discovered Rahim’s plans to behead an American citizen in New York at the direction of an ISIL militant. The Task Force learned Rahim had ordered three large knives over the internet that were delivered to his home. Officers intercepted and x-rayed one of the deliveries to confirm it contained a knife.
Officers conducting surveillance were directed to prevent Rahim from boarding any public transportation. Aware Rahim frequented a bus stop in front of a CVS store, officers gathered at a Task Force vehicle in the CVS parking lot to formulate a plan to prevent Rahim from boarding the bus. The officers called for marked patrol cars and uniformed officers to be near the area to assist with the stop. They described Rahim as “a black male, 6 feet, beard, 240, 20s, going to be coming out now armed with a knife.”
Rahim left his apartment and walked toward the bus stop. As Rahim walked, he called his brother, Muhammad Rahim, then called his father, Abdulla Rahim. Rahim told his brother, “Unfortunately, you will not be seeing me again.” Rahim’s cell phone captured audio of the ensuing confrontation with the officers. An officer told Rahim to put his hands up, then to drop the object in his hands. The officer told Rahim to “drop it” at least seven times, and Rahim responded, “Why don’t you drop yours?”
Rahim advanced on the officers, who retreated to maintain distance. Civilian witnesses said Rahim did “not [look] like he was going to stop,” and that at least one of the officers appeared fearful. The officers retreated backward across much of the CVS parking lot until they were up against a curb at the edge of the lot. Rahim kept advancing and came within 25 feet of the officers; the officers continued to back away. As the officers continued to command Rahim to drop the object, he said, “[Unintelligible] over here. Come on! Won’t you shoot me?”
As Rahim closed the distance, two officers fired at the same time. Rahim fell to the ground, an officer removed the object and another officer administered medical aid. Officers seized a large military-style knife and reported it was the object held by Rahim as he advanced on them. The officers’ five sworn statements uniformly state that Rahim had a large knife in his hand as he advanced on them. The officers described this knife as “15 to 18 inches,” a “large military knife,” “a dagger looking knife, with a large, straight blade,” “approximately 2 feet long,” and “a large black knife similar to a Bowie knife.”
Rahim was taken to a hospital and later died. His estate sued, alleging the officers’ use of lethal force violated the Fourth Amendment. The plaintiff claimed the officers “failed to approach Rahim in a safe manner, that this conduct was a material element and proximate cause” that led to the shooting, and that the “officers’ actions were not objectively reasonable in light of the circumstances.”
The trial court denied the officers’ request for qualified immunity. The court ruled the officers would be entitled to qualified immunity if the judge considered only the moment of the shooting. But, the trial judge stated, the proper analytical focus was not just on the encounter itself but on the officers’ plans and actions leading up to the encounter and shooting. Because there had been no factual discovery process prior to the motion for summary judgment and qualified immunity, the court ruled the plaintiff was entitled to “limited discovery” to make her case. The court further noted the plaintiff was entitled to question the officers to determine whether there was a factual dispute about whether they could have taken steps to defuse the situation.
The court has “not adopted the broad rule that officers have a duty to avoid creating situations which increase the risk that deadly force may be used.”
The appellate court began by reciting the test for qualified immunity. Though veteran Xiphos readers should have this memorized by now, here’s a recap for the newer readers: Courts ask (1) whether the defendant officer violated the plaintiff’s constitutional rights and (2) whether the right at issue was “clearly established” at the time of the alleged violation. The prongs need not be addressed in order, and an officer may be entitled to immunity based on either prong. The appellate court reversed the trial court, holding the officers were entitled to qualified immunity. The court was very direct:
“First, we hold that the officers are entitled to qualified immunity because the Estate has not identified any authority that would put the officers on notice that their actions were unlawful. Second, we hold independently that the officers are entitled to qualified immunity because an objectively reasonable officer facing the same fraught situation as Doe 1 and Doe 2 would not have known that the challenged conduct violated the law. And the officers are entitled to qualified immunity whether the focus is on the thirty-second fatal encounter or the fatal encounter plus the officers’ actions in the hour beforehand.”
The appellate court cited direction from the Supreme Court to “resolve immunity questions at the earliest possible stage in litigation.” To prevail, the plaintiff had to show that either controlling authority or a consensus of persuasive authority from earlier judicial decisions gave the officers notice that their conduct violated the law. The court concluded, “The plaintiff has not come close to meeting its burden of identifying controlling authority or a consensus of persuasive authority.” The court held that “a reasonable officer in this situation would have understood Rahim to have a lethal knife in his hands. We also hold that a reasonable officer, on the undisputed facts, would have understood Rahim’s actions to show that he had every intention to use this knife to kill the officers and, if they were unsuccessful in stopping him, to kill other people.”
The court cited several factors relevant to assessing the reasonableness of officers’ use of force, including:
- Whether a reasonable officer on the scene could believe the suspect “posed an immediate threat to police officers or civilians.”
- Whether a warning was given before the use of force and whether the suspect complied with this command.
- Whether the suspect was armed—with a gun, knife or otherwise—at the time of the encounter or whether the officers believed the suspect to be armed.
- The speed with which officers had to respond to unfolding events, both in terms of the overall confrontation and the decision to employ force.
- Whether the suspect was advancing on the officers or otherwise escalating the situation.
- The suspect’s physical proximity to the officers at the time of the use of force.
- Whether multiple officers simultaneously reached the conclusion that a use of force was required.
- The nature of the underlying crime.
The appellate court held that each of these factors supported granting qualified immunity to the officers. The court concluded by noting there was nothing to support the claim that the officers’ pre-confrontation conduct violated clearly established law. The court has “not adopted the broad rule that officers have a duty to avoid creating situations which increase the risk that deadly force may be used.”
This was a split decision, with one judge dissenting. The dissent would have allowed the plaintiff an opportunity to challenge officers’ statements that Rahim was holding the large combat knife. For courts, this case is a reminder of the Supreme Court precedent for the rules of qualified immunity. For officers, this decision recites factors that further elaborate on the use of force reasonableness test of Graham v. Connor (490 U.S. 386 (1989)).