On June 2, 2015, members of the Boston FBI Joint Terrorism Task Force intercepted a telephone call between Usaamah Rahim and David Wright at 5:18 a.m, who were both connected with the Islamic State of Iraq and the Levant (ISIL), a foreign terrorist group. During the call, Rahim told Wright that he could wait no longer and that he was going after “those boys in blue” because they were the “easiest target.” He said the attack would happen that day or the next.
At 6 a.m. on June 2, task force officers (FBI agents and Boston police officers) gathered in a drug store parking lot near Rahim’s apartment in the Roslindale section of Boston. They were informed of the details of Rahim’s earlier intercepted conversation and were instructed to stop him from boarding any public transportation. Prior surveillance disclosed that Rahim would often walk from his apartment to board a bus in front of the drug store parking lot.
Prior to June 2, the task force learned that Rahim and Wright had planned to travel to New York for July 4 and behead an American citizen for ISIL. The task force learned that Rahim purchased three large knives that were delivered to his apartment. One of the deliveries was intercepted and an x-ray confirmed that the package contained a knife.
At approximately 7 a.m. on June 2, Rahim began walking toward the bus stop at the drug store. While walking, Rahim made an intercepted call to his brother and told him that he would not see him again. As he neared the bus stop, he was confronted by an FBI agent and a Boston police officer (defendants Doe 1 and Doe 2), and other task force officers. Rahim’s intercepted phone call to his brother, still ongoing, captured the dialogue between himself and the officers in real-time.
Rahim was instructed several times to put his hands up. Moreover, he was ordered many times to “drop it” (a knife). Refusing to obey, Rahim repeatedly told task force members to drop their firearms. Rahim also was recorded exclaiming, “Come on! Won’t you shoot me.”
During the encounter, Rahim continually advanced toward the officers as they walked backward to maintain a safe distance. The officers retreated across the entire drug store parking lot until they reached a curb at the lot’s edge. When Rahim closed to approximately 25 feet, officer (Doe 1) fired twice at Rahim and Doe 2 simultaneously fired once. Rahim was killed and the entire confrontation was over in about 30 seconds. After Rahim was shot, officers removed something [1] from his hand and tossed it aside. An officer stood guard over this object at the shooting scene. The Boston Police Department subsequently processed the object: a 13-inch-long knife with an 8-inch blade.
Rahim’s Estate subsequently sued Doe 1 and Doe 2 in the federal district court pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, [2] alleging excessive force in violation of the Fourth Amendment. Doe 1 and Doe 2 asserted a qualified immunity defense before the district court judge in a motion for summary judgment. [3]
In support of their motion, the defendants furnished sworn statements in which they said that Rahim advanced upon them in an aggressive manner while wielding a large knife. Moreover, he was continuously non-compliant regarding commands to drop the knife and advanced to within 21 feet, the danger zone wherein an assailant can lethally harm an officer before he/she can react.
The district court rejected the qualified immunity defense; excluded the officers’ sworn statements because none had been deposed by Plaintiff’s lawyers; and authorized discovery on the theory that the proper focus was not just on the actual confrontation but also on the information known by the officers and their “plans, actions, observations, and means available to respond” [4] prior to the shooting. Doe one and two appealed to the First Circuit Court of Appeals.
The First Circuit Decision [5]
The court reversed the decision of the district court; granted qualified immunity to officers Doe one and two and dismissed the lawsuit against them. The court observed that the plaintiff failed to produce relevant prior case law that would have placed law enforcement officers on notice that their particular conduct would fall short of clearly established law requirements. Moreover, the court ruled that plaintiff failed to demonstrate, “that an objectively reasonable officer would have known that his conduct violated the law.’” [6]
The court determined that the district court erred in failing to admit and consider the sworn statements of the officers involved in the shooting. The court explained that the Estate did not challenge the facts articulated in the statements. Instead, the Estate argued that they should be given the right to depose the involved officers.
The court ruled that depositions were not required before reaching a decision on qualified immunity. The court explained that requiring depositions in the face of undisputed sworn statements was “inconsistent with the Supreme Court’s command to ‘resolve immunity questions at the earliest possible stage in litigation.’” [7]
The court ruled that “the officers are entitled to qualified immunity whether the focus is on the thirty-second fatal encounter or the fatal encounter plus the officers’ actions in the hour beforehand.” The court explained that “a reasonable officer in this situation would have understood Rahim to have a lethal knife” and “that he had every intention to use this knife to kill the officers.”
The court observed that Rahim continually advanced upon the retreating officers; ignored their repeated commands to drop the knife; taunted the officers several times to drop their firearms; and “was within range [about 25 feet] to seriously injure the officers at the time they fired.” Further, the court noted, “the fact that the two officers simultaneously made the split-second decision to fire supports the objective reasonableness of their decision.”
Points to remember
- An officer sued in federal court for an alleged constitutional violation can assert a qualified immunity defense at the pretrial stage in the district (i.e., lower) court. [8]
- Upon assertion of the qualified immunity defense, the plaintiff has the burden of establishing that the officer violated the constitution and violated clearly established constitutional law. [9]
- An officer is entitled to qualified immunity even if the plaintiff can establish a constitutional violation unless the plaintiff can likewise demonstrate that the law violated was clearly established (i.e., by judicial precedent). [10]
- To meet the clearly established law burden, the plaintiff must demonstrate that prior legal precedence would have placed an objectively reasonable officer in the same circumstances on notice that his/her conduct violated the constitution. [11]
- The Supreme Court has ruled that adjudicating the qualified immunity defense should take place prior to trial and before substantial discovery is permitted. [12] Therefore, according to the First Circuit in Rahim, lower federal courts must admit for consideration undisputed sworn officer statements without permitting plaintiffs to depose defendant officers.
- Between 2010 and 2019, FBI LEOKA statistics [13] reveal that although only three officers in the United States were killed with knives, 10,008 officers were attacked with knives or other edged weapons and 1201 of those were injured.
- Dr. William J. Lewinski from the Force Science Institute conducted a time/motion study of knife attacks upon officers from 21 feet. The study disclosed that a suspect could charge/stab an officer in an average time of 1.5/1.7 seconds. The study disclosed that officers could draw and fire one unsighted shot at a knife attacker in an average time of 1.5 seconds. A virtual tie. The bottom line: Officers should try to increase the distance between themselves and an edged weapon-wielding suspect before an attack begins. [14]
References
1. The court does not specifically identify the object in Rahim’s hand as a knife. Nonetheless, there is strong evidence that Rahim was holding a large knife in his hand when he was shot.
2. 403 U.S. 388 (1971). Bivens is the U.S. Supreme Court decision that permits persons to sue federal law enforcement officers for alleged violations of the Fourth Amendment to the U.S. constitution. Doe 2 was a Boston police officer but was working on a federal task force at the time of the shooting.
3. A motion for summary judgment involves an attempt by a party to a lawsuit to end the litigation on a ruling by the judge without the case proceeding to a trial.
4. Est. of Rahim v. United States, 506 F. Supp.3d 104, 118 (D. Mass. 2020).
5. Estate of Rahim v.John Doe 1; John Doe 2, (No. 21-1086 & 21-1087), (1st Cir. 2022).
6. Quoting, Conlogue v. Hamilton, 906 F.3d 150, 155 (1st Cir. 2018).
7. Quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991).
8. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
9. Conlogue v. Hamilton, 906 F.3d 150, 155 (1st Cir. 2018).
10. Pearson v. Callahan, 555 U.S. 223, 231 (2009).
11. See, Conlogue v. Hamilton, 906 F.3d 150, 155 (1st Cir. 2018).
12. Pearson v. Callahan, 555 U.S. 223, 231-232 (2009).
13. LEOKA is an abbreviation for the FBI statistical program known as “Law Enforcement Officers Killed and Assaulted.”
14. Dr. William J. Lewinski, “Edged Weapon Defense, Is the 21-Foot Rule Still Valid? Was it Ever?” (2005).
