Shooting to Stop Drivers: When Is It Lawful?

by | August 15, 2023

Raimey v. City of Niles, Ohio, 2023 WL 5124827 (6th Cir. 2023)

Matthew Burroughs went to the courthouse to pay a traffic fine. While a clerk was processing his payment, the electronic docketing system provided an alert of an arrest warrant for Burroughs relating to a recent domestic violence incident. The clerk asked Todd Zickefoose, a probation officer, to ensure Burroughs did not leave the courthouse until police arrived. Burroughs was already on his way out; Zickefoose followed Burroughs outside and told him to stop and put his hands behind his back. When Zickefoose reached for Burroughs’ forearm, he pulled away and ran toward the parking lot.

Zickefoose grabbed Burroughs’ arm as Burroughs got into his car. Burroughs started the car, put it in reverse and accelerated. The car door injured Zickefoose as Burroughs drove away. Four police officers responded separately to Burroughs’ apartment complex. At least two of the officers had prior dealings with Burroughs, who had been the subject of an FBI warning involving violent crimes against law enforcement.

Arriving at the apartment complex, one officer who was aware of the previous domestic violence incident got out on foot to look for Burroughs and warn Burroughs’ female roommate he was on his way to the apartment. Another officer saw Burroughs driving into the apartment complex at high speed. Two officers boxed in Burroughs’ car and yelled for him to “shut the car off” and “get out of the vehicle.”

The defendant officers assert Burroughs drove toward an officer standing in front of his car. The plaintiff’s expert claimed no officer was ever in the path of Burroughs’ vehicle and no officer was in danger of death or serious harm from Burroughs. An officer fired three rounds into the windshield, which hit Burroughs in the chest, killing him. Another officer fired five rounds, all of which missed Burroughs.

The trial court denied the officers’ motion for summary judgment, ruling a reasonable jury could find that, when the officers fired at him, Burroughs was moving slowly or was stationary and complying with commands. The court also ruled a jury could conclude that no officer was standing in the vehicle’s path.

“The critical question is whether the officer had objective reason to believe that the fleeing car presents an imminent danger to officers and members of the public in the area.”

The appellate court affirmed the denial of qualified immunity for the officer who claimed to be in Burroughs’ path and fired the first shots. The appellate court reviewed its prior holdings involving deadly force claims involving vehicular flight: “The critical question is whether the officer had objective reason to believe that the fleeing car presents an imminent danger to officers and members of the public in the area…Deadly force is justified against ‘a driver who objectively appears ready to drive into an officer or bystander with his car,’ but generally not ‘once the car moves away, leaving the officer and bystanders in a position of safety,’ unless ‘the officer’s prior interactions with the driver suggest that the driver will continue to endanger others with his car.’” Generally, to show that a driver will continue to pose danger to others requires evidence the suspect demonstrated “multiple times that he either was willing to injure an officer that got in the way of escape or was willing to persist in extremely reckless behavior that threatened the lives of all those around.”

When considering a defense motion for summary judgment based on qualified immunity, the court must credit the plaintiff’s version of the facts. The trial court noted a jury could reasonably find that an officer was directly in the path of Burroughs’ car and that the officer did not fire until Burroughs was driving at him. Alternatively, a jury could find that no officer was in danger at the time officers shot Burroughs: “Still, the Court emphasizes that this is an extremely close call.”

Police training over the past few decades has emphasized mitigation of the threat posed by a suspect wielding a vehicle as a weapon whenever possible and has reminded officers to distinguish between shooting at a vehicle and shooting to stop the aggressive actions of the driver. Lexipol policy acknowledges the ineffectiveness and danger of this tactic, guiding officers to “move out of the path of an approaching vehicle instead of discharging their firearm at the vehicle or any of its occupants” and prohibiting discharging their weapon unless “the officer reasonably believes there are no other reasonable means available to avert the threat of the vehicle.” This guidance has been in Lexipol policy for over a decade.  No matter what, the laws of physics illustrate that a bullet is highly unlikely to stop a typical 3,000-pound vehicle. Keep that in mind when confronting a suspect behind the wheel.

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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