Alabama U.S. judge shows a proper analysis of current law can deny qualified immunity and hold police officers accountable for use of unreasonable force

 

Part Two

Court records indicate a lawsuit over a white police officer's fatal shooting of a 19-year-old black youth in Mobile, AL, settled for $2.5 million after a federal judge denied the officer's request for qualified immunity. Would similar rulings help increase the chances of cops being held accountable for the injuries they cause? What was U.S. District Judge Terry Moorer's reasoning in denying qualified immunity? Is it a line of reasoning that other judges should follow?

The answers to those questions likely can best be determined by examining Moorer's memorandum opinion in Daugherty v. Hurst, a lawsuit that Shunta Daugherty, the mother of shooting victim Michael Dashawn Moore, filed against Officer Harold Hurst, among other defendants. Here is an outline of how immunity claims entered the picture,  from the memo opinion:

Plaintiff asserts three claims against Officer Hurst - Count I: Fourth Amendment violation brought pursuant to 42 U.S.C. § 1983 against Officer Hurst in his official and individual capacities; Count II: wrongful death pursuant to Ala. Code. § 6-5-410 against Officer Hurst in his official and individual capacities; and Count III: negligence pursuant to Alabama state law against Officer Hurst in his individual capacity.

Officer Hurst asserts qualified immunity as to Count I and state agent immunity as to Counts II and III.

How did Moorer address the qualified-immunity issue, which proved critical to the case's outcome? Let's take a look. (Some citations omitted to make for easier reading):

"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). To be protected by qualified immunity, the government official must first demonstrate that he was acting within the scope of his discretionary authority. Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). Next, courts utilize a two-part framework to evaluate qualified immunity claims. Castle v. Appalachian Tech. College, 631 F.3d 1194, 1197 (11th Cir. 2011). The first element is whether the plaintiff's allegations, if true, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151 (2001)).

The second element is whether the constitutional right at issue was "clearly established" at the time of the defendant's alleged misconduct. Id. at 232, 129 S. Ct. at 816. The first inquiry may be a mixed question of law or fact, but the second inquiry is purely a question of law.  "Both elements of this test must be present for an official to lose qualified immunity, and this two-pronged analysis may be done in whatever order is deemed most appropriate for the case." Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). If a plaintiff fails to establish either one, then the defendant is entitled to qualified immunity.

At this point, Moorer dives into the specifics presented in Daugherty:

Having laid out the framework for analysis, the Court will turn to the situation in this case. Neither party disputes that Officer Hurst was acting in the scope of his discretionary authority. Therefore, the burden shifts to the Plaintiff to establish the two-part framework.

(a) The Constitutional Violation

Plaintiff asserts that Officer Hurst violated Moore's Fourth Amendment right to be free from excessive force by shooting him to death.

The right to be free from unreasonable search and seizure is secured by the Fourth Amendment and "apprehension by the use of deadly force is a seizure." Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694. Additionally, under the Fourth Amendment, an officer's use of deadly force must be reasonable. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871. An officer may constitutionally use deadly force when the officer:

(1) "has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others" or "that he has committed a crime involving the infliction or threatened infliction of serious physical harm"; (2) reasonably believes that the use of deadly force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force, if feasible.

Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013). Yet even with these elements, the Court must not "apply them mechanically" and "must still slosh our way through the factbound morass of reasonableness." Id. (citations and internal quotations omitted). Further, as noted by the Eleventh Circuit, "none of these conditions are perquisites to the lawful application of deadly force by an officer seizing a suspect." Penley v. Eslinger, 605 F.3d 843, 850 (11th Cir. 2010); (explaining the elements are not "a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force.'").

An immunity analysis involves a delicate balancing act, one many judges seem to weigh in favor of law enforcement. But Moorer does not take the easy way out:

"In determining the reasonableness of the manner in which a seizure is effected, we must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Scott, 550 U.S. at 383, 127 S. Ct. at 1778 Additionally, "[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S. Ct. at 1872 (citation omitted). This "allow[s] 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, 775, 134 S. Ct. 2012, 188 L. Ed. 2d 1056 (2014).

As previously noted, even in excessive force cases, the facts must be viewed as "what a reasonable jury could find from the evidence viewed in the light most favorable to the non-moving party."  Further, "where there are 'varying accounts of what happened,' the proper standard requires [the Court] to adopt the account most favorable to the non-movants." Smith v. LePage, 834 F.3d 1285, 1296 (11th Cir. 2016). In the case at hand, there are sufficient contradictions and factual issues that preclude the finding that Officer Hurst shooting Moore was constitutionally permissible. Defendants place great emphasis on the fact that Officer Hurst believed that a handgun was present. The Court need not (and should not) reconcile the facts on whether a gun was ultimately present. Even if a gun were present at the scene, precedent has long established that "the mere presence of a gun or other weapon is not enough to warrant the exercise of deadly force and shield an officer from suit." Lundgren v. McDaniel, 814 F.2d 600, 602-03 (11th Cir. 1987) (finding presence of a handgun not dispositive and denying qualified immunity); The Court must look to the surrounding circumstances to determine whether Officer Hurst's actions were objectively reasonable. 

 Did Moore pose a threat of serious physical harm to the officer? That becomes a key question:

Turning to the different factors, the Court looks to the first factor for guidance. Specifically, whether Officer Hurst had probable cause to believe that Moore posed a threat of serious physical harm, either to the officer or to others, or that Moore had committed a crime involving the infliction or threatened infliction of serious physical harm. According to Officer Hurst, he activated his blue lights to stop the vehicle being driven by Moore and acknowledges that Moore pulled over. Therefore, case law related to car chases is not applicable here and the vehicle itself was not a threat. Further, even if the vehicle were stolen as Officer Hurst states, that alone does not constitute a crime involving the infliction or threatened infliction of serious physical harm. Therefore, the Court turns to whether Officer Hurst had probable cause to believe that Moore posed a threat of serious physical harm either to himself or to others.

The lack of video in this case unfortunately leaves that issue murky. The analysis hinges on Officer Hurst's credibility and whether you believe his version of events. Plaintiff has presented evidence from other witnesses who indicate that Moore did not move in a threatening manner, had his hands up, and did not reach for a gun. There is even a question as to whether a gun was on Moore when he exited the vehicle. Though Defendant tried to get the affidavits excluded, as noted in the opinion on evidentiary rulings, it is not for the Court to decide credibility issues or reconcile conflicting statements by a witness. Much like the analysis in the Perez case, there is no evidence that clearly contradicts the Plaintiff's version of the facts and "the record plainly yields sharply dueling accounts of what happened and why the critical shots were fired." Perez, 809 F.3d at 1221. If you credit those facts presented by Moore's estate as true, as the Court must, then a reasonable jury could conclude that Moore was not a threat of serious physical harm to Officer Hurst or anyone else. It would have been unreasonable for Officer Hurst to shoot Moore under those circumstances. Therefore, the use of deadly force would violate Moore's Fourth Amendment right to be free from excessive force.

Was Moore's right to be free from excessive force clearly established? That now becomes the focus of Moorer's analysis:

(b) Clearly Established Law

Next, the Court must look to whether the violation of Moore's constitutional rights was clearly established. With regard to the second prong of the analysis, courts "recognize three sources of law that would put a government official on notice of statutory or constitutional rights: specific statutory or constitutional provisions; principles of law enunciated in relevant decisions; and factually similar cases already decided by state and federal courts in the relevant jurisdiction." Goebert v. Lee Cnty., 510 F.3d 1312, 1330 (11th Cir. 2007).

In the case at hand, Moore's Fourth Amendment right to be free from the use of deadly force has long been clearly established. Officer Hurst was on fair notice at the time of the shooting from both the Supreme Court and the Eleventh Circuit that the use of deadly force has constitutional limits, and that his use of deadly force would be justified only if a reasonable officer in his position would believe that Moore posed an immediate threat of serious physical harm. Under the Plaintiff's version of events, these circumstances do not exist. There is conflicting evidence as to whether a gun existed or even if it did, whether Moore made any movement which could reasonably be construed as reaching for his gun.

Moreover, as many of these deadly force cases show, there are few cases that will be factually identical. Rather, the Court will also look beyond case law to whether the case at hand is one of "obvious clarity" - i.e., where the officer's conduct "lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to [the official], notwithstanding the lack of fact-specific case law" on point. Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009). Courts have repeatedly held that the constitutional violation is clearly established even though there is no decision in a "materially similar" preexisting case." Cantu, --- F.3d at ---; 2020 U.S. App. LEXIS 28074, at *36-39, 2020 WL 5270645.

If the facts as alleged by Plaintiff are believed, then, at best, Officer Hurst shot a suspect merely backing away with his hands in the air and clearly did not pose a threat and, at worst, continued to shoot him after he was already disabled and on the ground. Even considering the vehicle may have been stolen, the unlawfulness would be readily apparent to any reasonable officer that the deadly force used would be grossly disproportionate.

Our research indicates Moorer's citations to law are correct, and his analysis was rigorous and clear-minded. That means he could reach only one conclusion:

(c) Denial of Qualified Immunity

Therefore, at this stage in the litigation, Officer Hurst is not entitled to qualified immunity on the § 1983 / Fourth Amendment excessive force claim. To be clear, the holding today does not mean that he is entirely precluded from qualified immunity at a later point. There are numerous disputed issues of fact which the fact finder may ultimately resolve in his favor and, therefore, permit the Court to make the legal finding of qualified immunity. At this stage in the proceedings, however, taking the facts and evidence in the light most favorable to the Plaintiff, the Court must hold that as a matter of law the lethal force used by Officer Hurst against Moore was obviously unreasonable and violated clearly established law.

That brings us to state-agent immunity, where Officer Hurst also comes up short:

ii. State Agent Immunity

Officer Hurst also asserts state agent immunity for the two state law claims brought by the Plaintiff. Ala. Code § 6-5-338 gives police officers immunity from tort liability "arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties." ALA. CODE § 6-5-338(a); see also Ex parte City of Tuskegee, 932 So. 2d 895, 903 (Ala. 2005). But an officer can lose that immunity:

(1) when the Constitution or laws of the United States, or the Constitution of [Alabama], or laws, rules, or regulations of [Alabama] enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or

(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.

Ex parte City of Homewood, 231 So. 3d 1082 (Ala. 2017) (quoting Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)). In sum, the test for state agent immunity follows a similar burden-shifting framework as qualified immunity. Hunter v. Leeds, 941 F.3d 1265, 1283 (11th Cir. 2019). First, the officer must show that the claims arise from a law enforcement function. Ex parte City of Montgomery, 272 So. 3d 155, 161 (Ala. 2018) (citation omitted). Then the burden shifts to the plaintiff to show one of the Cranman exceptions applies.

As with the prior analysis under federal law, there is no dispute that Officer Hurst was acting in a discretionary function when stopping the vehicle and ultimately shooting Moore. Therefore, the Court looks to the second part of the analysis.

For the same factual reasons that Officer Hurst was not entitled to qualified immunity, the Court finds that he is similarly not entitled to state agent immunity as to the allegations of intentional conduct. Accepting the facts in the light most favorable to the Plaintiff, a reasonable jury could conclude that he acted willfully, maliciously, or beyond his authority. . . .

In summary, even taking facts in the light most favorable to the Plaintiff, state immunity shields Officer Hurst from negligent acts, but does not shield him from intentional acts. Therefore summary judgment is granted as to Count III, but denied as to Count II.

What do we learn from the death of Michael Dashawn Moore? We know a movement is afoot in Congress to do away with qualified immunity, and that might be needed. But the Moore case shows that, even under existing law, an officer still can be held accountable for unreasonable use of force that violates constitutional protections. 

It's not often that we find reason to praise a federal judge in Alabama, but we believe it is merited in this case. Moorer was appointed to the U.S. District-Court bench by, of all people, Donald Trump.