Qualified Immunity for Deputy Who Used Suspect as a Human Shield in a Gunfight

Lopez v. Sheriff of Cook County, 2021 WL 1326828 (7th Cir 2021)

This case clearly falls into the “don’t try this at home” category, or as the Court noted, “Nothing much good happens after 0300. The early morning hours of November 30, 2014, outside the Funky Buddha Lounge on Chicago’s West Side were no different.”

At 0355, Fernando Lopez sideswiped an SUV parked in front of the bar. A crowd of bystanders swarmed Lopez’s car and began to punch him through an open window. Lopez’s passenger got out of the car and fired a warning shot to disperse the crowd. Then, Lopez got out, grabbed the gun and walked toward the bystanders.

An off-duty deputy sheriff was celebrating a friend’s birthday at the bar; drawn by the gunshot, he approached the scene. Lopez walked back toward his car, firing two shots at an upward angle in the general direction of the crowd. Much of the scene was captured on the Funky Buddha Lounge’s security camera.

The deputy approached Lopez with his own gun drawn. As Lopez reached to open his car door, the deputy shot him. Lopez, injured, dropped his gun and staggered away. The deputy continued to fire and pursued Lopez, who was, at this point, leaning against a wall. Lopez’s passenger picked up the dropped gun and fired at the deputy. For about three minutes, the passenger and the deputy engaged in a standoff. At the same time, the deputy restrained Lopez, wounded but conscious, and used him as a human shield, intermittently pointing his gun at Lopez’s head. Soon the passenger fled. Police and paramedics arrived and treated Lopez, who was later charged with weapons crimes.

Lopez sued the off-duty deputy, alleging excessive force. The trial court granted summary judgment, concluding the deputy was entitled to qualified immunity because his use of deadly force did not violate clearly established law. Lopez appealed. Remember, when a plaintiff such as Lopez appeals from a dismissal based on qualified immunity, the appellate court must consider all facts in the light most favorable to Lopez and must draw all reasonable inferences in Lopez’s favor.

Qualified immunity is not dependent on the officer using the best tactic and when applied, does not mean the officer is immune from criticism.

In June, noted Chicago-area attorney Laura Scarry and I will present a webinar on the Anatomy of a Lawsuit. We’ll talk extensively about qualified immunity and how the doctrine fits into a situation like this. For now, remember that, in assessing an officer’s entitlement to qualified immunity, courts perform a two-fold inquiry: First, asking whether the officer’s conduct violated a constitutional right and, if so, whether that right was clearly established at the time of the alleged violation. For the law to be clearly established, the “existing precedent must have placed the statutory or constitutional question beyond debate” (Ashcroft v. al-Kidd, 563 U.S. 731 (2011)).

The court upheld the grant of qualified immunity for the deputy. No prior cases suggested that the deputy’s “split-second decision to open fire was unlawful. There were many people on the city street when Lopez, just moments before, opened fire. All knew at the time he fired was that Lopez had just popped off two rounds and that Lopez was now walking in his general direction with gun in hand. A reasonable officer could have concluded that Lopez was an imminent threat both to the officer and the bystanders on the street and outside the Lounge.”

To be sure, the court was critical of the deputy’s aiming his gun at Lopez’s head: “You certainly (and rightly) will not find this maneuver in a police training manual.” Nonetheless, qualified immunity is not dependent on the officer using the best tactic and when applied, does not mean the officer is immune from criticism.

The court observed, “in this very context of qualified immunity, the Supreme Court has emphasized that a proper analysis must ‘allow for the fact 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’” (Plumhoff v. Rickard, 572 U.S. 765 (2014)). Even though the security camera video recording suggested that, in clear hindsight, the deputy might have been able to avoid any deadly force, “the benefit of hindsight does not lower the clear and high bar that is the law of qualified immunity.”

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

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 four 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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