Shooting Gallery

Written by Michael Avery

Thanks to SALT for an opportunity to serve as a guest blogger.  I’m just finishing up my portion of the annual supplement to Police Misconduct: Law and Litigation, a civil rights treatise that I write together with David Rudovsky and Karen Blum.  This is a good chance to share what’s happening in that field with those of you who don’t handle those cases or follow that law.

For the past forty years (ouch!) I have been suing cops who violate the Constitution when they arrest, search, beat up and shoot people.  When I first got started in this business, cops who thought they might get in trouble for shooting unarmed suspects used to carry throwdown guns, also known as drop guns.  After they shot the guy, they would simply plant the throwdown gun near his hand or in his belt. Now they could say they shot him because he had a weapon and was threatening the officer, or someone else.

The cops who didn’t carry drop guns had a tendency to see shiny objects that looked liked guns in the hands of the suspects they shot, just before they shot them. This was also a good defense to an excessive force claim by the relatives of the deceased suspect.  The suspect didn’t really have to have a gun; the shooting would be legal if the officer reasonably believed that he saw a gun in the deceased’s hand.

Well, we’ve come a long way since then.  Today cops don’t have to carry throwdown guns or see shiny objects, because the judges supply these weapons or potential weapons for them.  How does that work?  Consider Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009), a case I just finished putting in my book.

Michael Manis, a father with two children, got drunk and high on barbiturates and cocaine and passed out in his Jeep Cherokee on the intersection of the highway and the railroad tracks.  The truckers who came upon him could not wake him with the horn on their tractor-trailer rig, so they called the police.  Two officers arrived and had a difficult time waking Mr. Manis.  When they finally roused him, the police said he began shouting obscenities and flailing his arms.  Then, according to the officers, he began to repeatedly reach under the front seat.  The officers ordered him to show his hands, but he ignored them.  When Officer Douglass Zemlik thought Manis “made a bigger lunge like he had retrieved something,” he fired four shots, killing Mr. Manis.

The officer never claimed that he saw a weapon, or even a shiny object.  But that’s not required in the Fifth Circuit.  Their rule is, “an officer’s use of deadly force [is] reasonable when a suspect moves out of the officer’s line of sight such that the officer could reasonably believe the suspect was reaching for a weapon.”

This case tragically demonstrates how easy it is for the police to get away with killing someone in the Fifth Circuit.  First of all, Mr. Manis was not really a “suspect,” that is, he was not suspected of any criminal activity other than drunk driving.  The plaintiffs argued that he had not cursed the officers, only moved his arms out of drunken confusion, and tried unsuccessfully to get out of the Jeep at the officer’s instruction but was oblivious to his seat belt.  Even more significantly, the officer’s claim that he thought Manis was reaching for a weapon was belied by the fact that neither officer looked under the seat for a gun after he was shot.  The appellate judges swept that aside, concluding that the plaintiffs had attempted to “use this undisputed fact to imply a speculative scenario that has no factual support.”  Come again?  The judges also deemed the fact that there was no gun to be irrelevant, and concluded the officer’s claims were not impeached by inconsistencies in the two officers’ testimony regarding which officer Manis lunged toward when he was shot, what direction he was facing, and whether the second officer saw anything in his hand.

Notice something else here.  This case never reached a jury.  The district judge had denied the officer’s summary judgment motion and would have set the case for trial.  But because police officers are entitled to a qualified immunity from suit, they are entitled to an interlocutory appeal of summary judgment rulings that go against them on qualified immunity grounds.  The appellate judges concluded that Officer Zemlik’s actions were “objectively reasonable under clearly established law,” and that was the end of the case.

In the Fifth Circuit, you better stay in a police officer’s field of vision and keep your hands visible at all times.