A while back I wrote about the collateral order doctrine as discussed by the Fourth Circuit in Williams v. Strickland. (See prior blog post here). Williams involved an alleged excessive force claim against a law enforcement officer and an interlocutory appeal from the denial of the officer’s motion for summary judgment on the ground of qualified immunity. The Court held that the officer was not entitled to qualified immunity (at least at that point in the case) because the established law is that the use of deadly force by an officer may be justified at one point in an encounter with a suspect, but unjustified a moment later in the same encounter. In discussing Williams, I commented:
As one who regularly defends law enforcement agencies and officers, I can say that this is undoubtedly a difficult result for law enforcement. Given the nature of the job and the situations that sometimes confront officers, a rule of law that requires officers in the heat of an encounter in which their lives or the lives of others are in danger to recognize the precise moment that the threat dissipates and immediately change their behavior, is arguably unworkable in practice.
Last week, the Fourth Circuit addressed essentially the same issue in Harris v. Pittman: whether a law enforcement officer who used potentially deadly force against a fleeing suspect during an altercation in which the suspect tried to kill the officer is entitled to qualified immunity if, under the facts viewed in the light most favorable to the suspect, the threat to the officer’s life diminished at some point during the altercation. Continuing the trend from the Williams, and perhaps taking it a step further, the majority answered that question in the negative.
No factual summary in a blog post like this could be an adequate substitute for reading the facts as set out in both the Fourth Circuit majority’s opinion and Judge Wilkinson’s dissent in Harris. If you have an interest in the issue of qualified immunity, I recommend you to read the case in its entirety. But the barest of essentials are that a police officer was chasing a fleeing suspect (the plaintiff), and when the officer caught the plaintiff, a physical struggle ensued. During that struggle the officer shot the plaintiff three times.
As set out by the majority, the “critical disagreement is over the precise circumstances under which [the officer] fired his final shots at [the plaintiff]: whether…a deadly struggle was ongoing, with [plaintiff] standing over [the officer] as [the officer] fired; or whether…the struggle was over, with [plaintiff] lying on the ground, wounded and unarmed, when [the officer] stood above him and fired two more shots into his chest and leg.” As was the case in Williams, the majority noted that “even where an initial use of deadly force is reasonable, the repeated use of force may be constitutionally excessive if circumstances change in material ways.” Where the majority and dissent diverged was on the issue of a material change in circumstances. There was no question that the first shot by the officer was a justified use of force; the plaintiff...
