This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
Estate of Christopher J. Davis v. Ortiz, 2021 WL 402487 (7th Cir. 2021)
Police responding to a domestic violence call found marijuana, sandwich bags and a scale in the suspect’s apartment. The suspect admitted to being a drug dealer and agreed to work for police as a confidential informant (CI). After completing one buy-bust operation with the CI, officers arranged to meet Roberto Juarez-Nieves in a restaurant parking lot to purchase cocaine. Nieves contacted Jose Lara and Christopher Davis to obtain the cocaine and assist in the delivery.
The suspects drove to the parking lot in a Pontiac Bonneville. Lara was driving, Davis was in the front passenger seat and Nieves was in the back. Nieves relayed to the CI that he was in a Bonneville parked next to a dark Mercury Marquis.
Officers Knox, Schmidt and Price, along with Deputy Ortiz, drove into the parking lot. Knox and Schmidt parked a marked patrol car behind the Mercury and saw Nieves and his companions in the Pontiac. At the same time, Nieves began to suspect a set-up and decided to leave. Lara backed out slowly from the parking spot.
Knox drew his gun and shouted at the occupants of the Pontiac to show their hands. Knox had to step aside to avoid the Pontiac backing up. Lara stopped the vehicle. When Ortiz and Price saw Knox with his weapon drawn, they both got out of their cars and drew their guns. Ortiz moved to one of the parking lot exits. After about a five-second delay, Lara accelerated forward to escape the parking lot.
As Lara accelerated toward the exit, Ortiz, standing 50 feet away, fired shots into the car. Ortiz believed he would have been hit even if he had attempted to dodge the oncoming car. One of Ortiz’s shots hit Davis in the head. Lara kept driving for a brief time but crashed the car. The officers caught Lara and Nieves as they fled on foot.
Davis’s estate sued, claiming Ortiz’s use of deadly force was unreasonable. The trial court denied qualified immunity, ruling Ortiz’s testimony was insufficient to establish as a matter of law that Ortiz was aiming exclusively for Lara, the driver. Ortiz said his “intent was to stop the threat that was coming at him.” The trial court reasoned that a jury might decide Ortiz was shooting at the car generally to stop the car coming toward him, as opposed to stopping the driver from aiming the car toward him, and that deadly force was excessive in those circumstances. Ortiz appealed the denial of qualified immunity.
Regular readers of Xiphos should be well-schooled by now in the mechanics of defending a lawsuit on the basis of qualified immunity. Qualified immunity is a court-created doctrine designed to strike a balance between addressing constitutional injuries caused by police (and other government officials) and limiting the costs of lawsuits. “Officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time” (District of Columbia v. Wesby, 138 S. Ct. 577 (2018)). Qualified immunity is meant to protect “all but the plainly incompetent or those who knowingly violate the law” (Mullenix v. Luna, 577 U.S. 7 (2015)).
In 2014, the Supreme Court held that it is reasonable for an officer to shoot into a moving vehicle to end a pursuit (Plumhoff v. Rickard, 572 U.S. 765 (2014)). In 2015, the court concluded that an officer who fired from a highway overpass into a fleeing car, killing the driver, was entitled to qualified immunity in Mullenix v. Luna (577 U.S. 7 (2015)). Even so, many departments strongly discourage shooting at moving vehicles to disable the car. For example, the Lexipol Law Enforcement Policy Manual provides:
Officers should move out of the path of an approaching vehicle instead of discharging their firearm at the vehicle or any of its occupants. An officer should only discharge a firearm at a moving vehicle or its occupants when the officer reasonably believes there are no other reasonable means available to avert the threat of the vehicle, or if deadly force other than the vehicle is directed at the officer or others. Officers should not shoot at any part of a vehicle in an attempt to disable the vehicle. (emphasis added)
The appellate court held that whether Deputy Ortiz “acted in an objectively reasonable way as he was firing” was a critical disputed issue of material fact: “The pertinent question is whether a jury could find that Ortiz’s actions – firing repeatedly at a moving vehicle as it was leaving the parking lot – were objectively unreasonable under all the circumstances, and thus amount to a Fourth Amendment violation. There is evidence to support a finding that Ortiz was aiming at the car as a whole. As part of that effort, he discharged four bullets, one of which fatally injured Davis.” The court stated that Ortiz would have the chance to convince a jury his actions were objectively reasonable, as will the plaintiff have the chance to persuade the jury Ortiz acted improperly in shooting into the car to stop the threat.
My colleague Chief (Ret.) Mike Ranalli has provided an excellent discussion of the issues raised by shooting at vehicles. No one can dispute the physics: 12 grams of lead and copper will nearly always be trumped by 3,000 pounds of steel, rubber and plastic. Nonetheless, the Supreme Court has considered and rejected a bright-line holding that firing into a vehicle is objectively unreasonable in all circumstances. Chief Ranalli offers real world examples to illustrate why such an approach would be unwise. At trial, a jury may well agree Deputy Ortiz was objectively reasonable in firing at the car.
