No Liability When Suspect Refused to Show Hands, Acted as if Drawing a Gun

by | November 16, 2021

Estate of Taylor v. Salt Lake City, 2021 WL 4955461 (10th Cir. 2021)

Dillon Taylor seemed to try hard to lead officers, who were responding to a 911 call of a man with a gun, to believe that he himself had a gun, though he did not. The 10th Circuit Court of Appeals began its opinion: “Over thirty years ago, the Supreme Court recognized the cold reality that ‘police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’ (Graham v. Connor, 490 U.S. 386 (1989)). And, regarding such circumstances, the Fourth Amendment is clear: officers need not wait until they see the gun’s barrel or the knife’s blade before using deadly force to protect themselves or those around them.”

Three officers attempted to stop Taylor and two other men as they exited a convenience store. Two of the three matched the descriptions given of the man flashing a gun and his companion. Two of the men immediately complied with the officers’ commands to stop and show their hands. Taylor refused, turned and walked away. Two of the officers followed Taylor, repeatedly ordering him to stop and show his hands, but Taylor still refused. Instead, he verbally challenged the officers, kept walking and placed at least one of his hands in his waistband. Taylor appeared to pull his pants up, reaching his hands down on either side of his pants and tugging them upwards as if the pants were weighed down by a heavy object.

The officers repeated their commands to Taylor to show his hands. He replied, “What are you going to do? Come on, shoot me.” Taylor turned and faced one of the officers. The officer told him, “Get your hands out,” and Taylor responded, “Nah, fool.”

Taylor then walked backward with his hands in his waistband, and “appeared to be digging there, as if was manipulating something…Then, without any verbal warning, Taylor quickly lifted his shirt with his left hand – exposing his lower torso – and virtually simultaneously withdrew his right hand from his waistband. The motion took less than one second and was consistent with the drawing of a gun.” The officer reacted to Taylor’s sudden drawing motion by firing twice in quick succession.

Taylor’s family sued and the trial court granted summary judgment to the officers. Plaintiffs appealed, claiming the court should not have relied on statements from Taylor’s companions who were detained and questioned. Therefore, the plaintiffs argued, the trial court erred by finding the officer’s actions were objectively reasonable, and thus constitutional, under the Fourth Amendment.

The 10th Circuit Court of Appeals had not yet determined whether the exclusionary rule, which prevents the government from using evidence obtained in violation of the Constitution, applies in civil rights litigation. The Supreme Court has “generally held the exclusionary rule to apply only in criminal trials.” Though the 10th Circuit hadn’t addressed the issue prior to this case, many other federal appellate courts had. Uniformly, these other courts refused to apply the exclusionary rule in civil litigation. In this case, the 10th Circuit joined other federal courts in concluding that the exclusionary rule does not apply; the statements from Taylor’s companions were acceptable.

The court next turned to the critical question of whether the officer violated Taylor’s constitutional rights. When considering whether an officer is entitled to the protection of qualified immunity, the court asks two questions: First, did the officer violate a known constitutional right? If the answer is yes, the court then determines if the officer knew their actions violated the individual’s clearly established right.

All use of force lawsuits are measured by the standards established by the Supreme Court in Graham v. Connor. In the Graham case, the Court instructed lower courts to always ask three questions to measure the constitutionality of a particular use of force: First, what was the severity of the crime the officer believed the suspect to have committed or to 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 Supreme Court also stated that the use of force should be measured by what the officer knew at the scene.

The salient question is whether the officers’ mistaken perceptions that Taylor was about to use a firearm were reasonable.

The appellate court held that “in the light most favorable to plaintiffs, the undisputed facts in this case—including the clear video evidence—indicate that the first and third factors favor plaintiffs.” The court noted the severity of the crime might have been as minor as a non-violent misdemeanor, though it was possible flashing the gun could also have been a felony. The court also stated that the third factor—active resistance or evasion of arrest—favored plaintiffs because “a reasonable officer at this point would know that the reported activity was non-violent and, in fact, could have been lawful.” One certainly could argue with the court’s breezy conclusion that waving a gun was “non-violent.”

Notwithstanding, the court noted “the second factor—whether there is an immediate threat to safety—is undoubtedly the most important factor in determining the objective reasonableness of an officer’s use of force.” The second is the most “fact intensive factor.” The 10th Circuit previously articulated four factors to guide the question of whether the suspect posed a credible threat of serious physical harm to themselves or to others. Those factors include: “(1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect” (Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (10th Cir. 2008)). The salient question is whether the officers’ mistaken perceptions that Taylor was about to use a firearm were reasonable.

The evidence was clear that Taylor’s hand movements just before he was shot were consistent with drawing a gun against the officers, “that is, his conduct reflected bad intentions.” Taylor’s movements just before the ultimate moment when the officer shot him “likewise were not indicative of benign intentions.” Taylor ignored repeated commands to stop and show his hands, while he verbally challenged the officer, saying, “What are you going to do? Come on, shoot me,” and “Nah, fool.”

The court held the officer “used deadly force in response to a reasonably perceived mortal threat from Taylor. Thus, decision to shoot Taylor was objectively reasonable and, consequently, he did not violate Taylor’s Fourth Amendment rights…The undisputed material facts and video and photographic evidence of the moments when Taylor was shot demonstrate that a reasonable officer would believe that Taylor made a hostile motion with a weapon towards the officers.”

The officers responding to a call of a man waving a gun at a convenience store responded tactically and judiciously. As the court noted, it is conceivable that no major or minor crime had occurred. The officers effectively balanced their investigatory mission with tactical considerations (watch the video). What you don’t hear on the video is any language or commands that one wouldn’t want a jury to hear. (Remember: Talk nice, think mean!) Note: The video does show that Taylor was wearing earbuds but also that Taylor physically and verbally responded to the officers’ commands.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

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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