Eleventh Circuit Court of Appeals
Harris-Billups v. Anderson
11th Circuit Court of Appeals
3/13/23, Judge Newsom
Topics: 1983 (Excessive Force)
In this 1983 case alleging excessive force by a Georgia police officer, the Eleventh Circuit took the new step of citing to—and publicly posting—the video of the shooting, hyperlinking from the opinion to the court’s website at https://www.ca11.uscourts.gov/media-sources This case came down to whether it was reasonable for an officer to shoot a man who had fired at police officers, had 2 been shot at 54 times by officers (four of the bullets striking him), assumed a fetal position on the ground, having dropped his guns, but then “violently lurched.” Firing the single lethal shot in response to the “lurch” at 1:25 of the video was deemed by the court to be “reasonable” in light of the decedent’s prior shooting at the police and the possibility that the lurch indicated another attack.
The officer was exercising discretionary authority and was entitled to qualified immunity unless she violated a constitutional right that was clearly established at the time of her actions. The constitutional right at issue was the Fourth Amendment’s right against unreasonable seizure, as use of deadly force is considered a seizure. This case involves what the court called “a bright(ish) line” entitling an officer to “use deadly force when [s]he ‘has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’” The inquiry is objective. Probable cause is “not a high bar.”
The court agreed that the decedent’s guns had been dropped outside his “immediate reach,” but stated that he “probably could have reached them” with a “quick lunge.” He had just surprised officers by dropping one gun and then pulling a second. His “access to deadly weapons” and demonstrated willingness to sue them was determinative here. When surrounded by officers, he’d held a gun to one officer’s head, ignored calls to drop his weapons, and fired on the officers. He was acting unstable.
Because the lurch does not look like that big a deal to me, I’ll let the court describe it:
- As we have explained—and as the bodycam video confirms—Mr. Harris’s lurch was not the staggering, slow-to-get-up tossing of a dazed or injured athlete. It was the jolt of one jarred awake or springing into sudden, urgent action. In the blink of an eye, Mr. Harris’s upper body rose off the ground, his legs kicked, and his arms swooped down toward his torso. Could he have been working up the momentum to stand or slide toward one of the guns on the ground? Might he have been reaching for a third gun in his pants? Or was he instead just writhing in pain? We can’t be sure what Mr. Harris was doing. And that is precisely the point: “[A]n officer is not required to wait until an armed and dangerous felon has drawn a bead on [her] or others before using deadly force.”
The estate argued that the decedent’s movement was not a threat, but the court rejected this due to the sudden lurching. Affirmed. https://media.ca11.uscourts.gov/opinions/pub/files/202210033.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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