Qualified Immunity Appropriate for Shooting Lasting 2 Seconds

by | July 29, 2023

Ching v. City of Minneapolis, 2023 WL 4520160

Travis Jordan’s girlfriend called police, reporting she was concerned about Jordan’s mental state and wellbeing. The girlfriend told the 911 operator Jordan was having suicidal thoughts at his mother’s house and that no one else was with him. After officers arrived at Jordan’s mother’s house and repeatedly attempted to speak with him, Jordan told officers he did not want to speak and that he wanted them to leave. An officer standing at the side of the house saw Jordan walk into the enclosed front porch area and move toward the outside door while holding a knife. That officer told nearby Officer Walsh to “get his mace out,” and “he’s got a knife, dude.”

The officers drew their weapons and repeatedly commanded Jordan to drop the knife; Jordan did not comply. Continuing to ignore the officers’ commands to drop the knife, Jordan stood in the doorway, while shouting, “Let’s do this,” and “Just do it.” Jordan walked toward Officer Walsh with the knife at his side. As Jordan approached the officers, they continued to command him to drop the knife. Jordan continued to advance toward Officer Walsh, as the officer retreated backward, away from Jordan. While Jordan “never raised the knife,” he continued to advance and did not drop the knife. When Jordan was approximately six to 12 feet from the officer, the officer began shooting at Jordan. The officer fired seven rounds in just about two seconds without any discernible pause. In quick succession, the officer fired three shots while Jordan was standing and four shots after Jordan was on the ground. Jordan died and his mother, Florine Ching, sued.

The appellate court stated that its own prior rulings did not provide the officer with “notice that a single second in a less than two-second encounter was sufficient time for him to reassess the threat Jordan presented.”

The trial judge declined to grant qualified immunity to the officer for the shots fired after Jordan dropped the knife and fell to the ground. The judge ruled the officer “had sufficient time and situational awareness to adjust his aim downward after Jordan fell to the ground and, based on this determination, concluded a reasonable jury could find the officer had time to reassess the threat posed by Jordan.” The officer appealed.

The court of appeals reviewed the body-worn camera recordings. Disagreeing with the trial judge, the court held that, “Given the swift and continuous progression of the incident and the officer’s limited time to observe and process the circumstances, a jury could not find the officer had sufficient time to reassess the threat Jordan presented before he stopped firing.”

Many lawsuits alleging excessive force are dismissed after the court rules that qualified immunity should be applied to the officer. A court considers two questions to determine whether an officer is entitled to qualified immunity on an allegation of excessive force. In either order, the court examines whether the officer violated the plaintiff’s constitutional rights under the Fourth Amendment and whether that constitutional right was clearly established at the time of the incident. Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects all but the plainly incompetent or those who knowingly violate the law” (Ashcroft v. al-Kidd, 563 U.S. 731 (2011)). A right is “clearly established” when it is based on a sufficiently clear foundation in then-existing precedent. The rule must be settled law, which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority. If the right is not clearly established, then the officers are entitled to qualified immunity from suit.

The appellate court stated that its own prior rulings did not provide the officer with “notice that a single second in a less than two-second encounter was sufficient time for him to reassess the threat Jordan presented. Ching has not presented, and we are not aware of, any case in which a court has bifurcated a shooting when an entire continuous shooting lasted less than two seconds, and the alleged excessive force occurred only one second after the threat was arguably dissipated.” The court held Jordan posed a threat to the officer and that it was not clearly established the officer’s continuous shooting (lasting less than two seconds) violated a constitutional right. Thus, the officer was entitled to qualified immunity.

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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