Debbie Latits v. Lowell Phillips

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0292p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBBIE JEAN LATITS, as Personal Representative of the ┐
Estate of Laszlo John Latits, Deceased, │
│ No. 15-2306
Plaintiff-Appellant,
│
>
v. │
│
│
LOWELL PHILLIPS, Police Officer for the City of │
Ferndale, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:12-cv-14306—Stephen J. Murphy III, District Judge.
Decided and Filed: December 27, 2017
Before: CLAY and STRANCH, Circuit Judges; BLACK, District Judge.
_________________
COUNSEL
ON BRIEF: Kevin Ernst, ERNST LAW FIRM, Detroit, Michigan, Dean Elliott, DEAN
ELLIOTT, PLC, Royal Oak, Michigan, for Appellant. Lindsey A. Peck, SEWARD PECK &
HENDERSON, Royal Oak, Michigan, for Appellee.
STRANCH, J., delivered the opinion of the court in which BLACK, D.J., joined, and
CLAY, J., joined in part. CLAY, J. (pp. 17–24), delivered a separate opinion concurring in part
and dissenting in part.
No. 15-2306 Latits v. Phillips Page 2
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Lowell Phillips, then a Ferndale Police Officer,
ended a car chase on the outskirts of Detroit by ramming Laszlo Latits’s car off the road and then
shooting and killing Latits as he tried to resume flight. Latits’s widow sued former Officer
Phillips under 42 U.S.C. § 1983 alleging that Phillips’s actions violated the Fourth Amendment.
The district court granted summary judgment to Phillips, concluding that the shooting was
reasonable. We determine that Phillips’s use of deadly force was objectively unreasonable, in
violation of the Fourth Amendment. Caselaw existing at the time of the events, however, did not
clearly establish the objective unreasonableness of Phillips’s actions in the circumstances of this
case. Phillips is therefore entitled to qualified immunity and we must AFFIRM.
I. BACKGROUND
The events of this case were recorded by video cameras mounted on the dashboards of
four separate police cars. Consequently, we describe the facts “in the light depicted by the
videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007). Because this appeal arises from the
Defendant’s motion for summary judgment, we view any relevant gaps or uncertainties left by
the videos in the light most favorable to the Plaintiff. See Godawa v. Byrd, 798 F.3d 457, 463
(6th Cir. 2015) (accepting the plaintiff’s version of the facts because they were not “clearly
contradict[ed]” by the video). Facts are also provided by deposition testimony and other
evidence presented in the district court.
After midnight on June 24, 2010, Ferndale Police Officer Kenneth Jaklic stopped Latits
for turning the wrong way onto a divided boulevard. Jaklic approached the car with a flashlight.
Latits produced his driver’s license and opened his glove box to retrieve his registration and
insurance documents. Officer Jaklic testified that inside the box he saw one or more bags that he
suspected to contain marijuana and a pill bottle, all of which Latits attempted to move under the
passenger seat. Jaklic testified that he then told Latits to get out of the car. The video recorded
by the officer’s dashboard camera shows that Jaklic took out his gun about eight seconds after
No. 15-2306 Latits v. Phillips Page 3
walking up to the car, and then stood at Latits’s window shining his flashlight into the car and
pointing the gun at the ground for about thirty seconds. Officer Jaklic then raised his gun and
pointed it at Latits’s head at point-blank range. Latits drove away, and Jaklic ran back to his
police car to pursue him.
Officer Jaklic broadcast that he was pursuing a fleeing vehicle and other officers headed
in that direction to join the chase. Jaklic announced that he was chasing a suspect for a traffic
violation and possible health code violation, including “stashing some narcotics underneath his
chair.” After fleeing from Jaklic for nearly two minutes (during which time Latits’s car cannot
be seen clearly on video), Latits entered an empty parking lot. Officer Jaklic’s car entered the
parking lot and slowly moved into the path of Latits’s car, at which time Latits can be seen
steering away from Jaklic’s car to avoid colliding. Officer Jaklic then broadcast that Latits “tried
to ram my vehicle.” Another officer can be heard asking to clarify whether Latits rammed the
patrol car, to which Jaklic responded: “He tried to.” At his deposition, Officer Jaklic admitted
that Latits in fact turned his wheel and got out of the way to avoid hitting the patrol car.
At the moment of the near miss of the cars of Latits and Jaklic, the dashboard camera of
the Defendant, Officer Phillips, shows that the parking lot where Latits was located was just
ahead of Phillips. The district court determined that a reasonable jury could find from the video
that Officer Phillips could see that Latits did not try to ram Jaklic and therefore knew that Officer
Jaklic’s statement otherwise was false.
After avoiding Officer Jaklic’s car, Latits fled the parking lot, turning south on to a ten-
lane divided highway. Three officers were now chasing close behind Latits: Officer Andrew
Wurm first, Officer Jaklic second, and Officer Phillips third.1 All three had dashboard cameras
recording their perspectives of the chase.
1
The Plaintiff submitted evidence to the district court (from a deposition in another case in which the
Ferndale Chief of Police discussed Officer Phillips’s role in the events of this case) that Ferndale Police Department
policy prohibits more than two police cars from actively pursuing a fleeing car without special permission. The
Ferndale Chief of Police testified that Officer Phillips violated department policy by joining the pursuit as the third
police car without the required permission.
No. 15-2306 Latits v. Phillips Page 4
For approximately thirty seconds, Latits led the three officers southbound down the
highway at about sixty miles per hour, passing through two red lights. No pedestrians or other
cars are visible on the nighttime highway except one parked car two lanes away from Latits. The
highway was bounded by a cemetery on one side and a commercial zone and vacant state
fairgrounds on the other.
Latits next attempted to make a U-turn but partially ran over the curb of the grassy
highway median. Wurm, still the first officer behind Latits, also attempted to make the U-turn,
and collided with the rear driver’s side of Latits’s car.2 Officer Wurm then broadcast over the
police radio: “Oh, I just hit him.” Officer Phillips was following shortly behind Officers Wurm
and Jaklic, and the district court determined that a jury could find that Phillips knew that Wurm’s
car hit Latits’s car. As the cars tried to reorient on the highway, Officer Wurm again collided
with the rear of Latits’s car, at which time an officer (presumably Wurm) can be heard
exclaiming: “Shit!” Officer Phillips, close behind Wurm and Jaklic, could see Wurm hit Latits a
second time. An officer can then be heard saying: “This guy’s all over the road, he’s hit me
several times.” The videos, however, show that Latits had not hit any police cars; rather, he had
turned to avoid hitting Officer Jaklic and had been hit twice by Officer Wurm.
The two impacts by Officer Wurm’s car apparently caused Latits to lose control of his
car, which swerved to the right and then back left across three lanes. No pedestrians or cars
besides those of Latits and the officers are visible on the video during this time. Latits’s car then
straightened out and traveled northbound for nearly five seconds. While Latits was swerving,
Officer Phillips sped past Officers Jaklic and Wurm and, nearly five seconds after Latits’s car
had straightened out, Phillips rammed Latits’s car from the back left, pushing it across two lanes
of traffic and off the road.3 Officer Phillips’s ramming caused Latits’s car to spin out onto an
area of grass and concrete to the right.
2
Officer Wurm received a written reprimand for intentionally striking the suspect vehicle during the pursuit
in violation of Ferndale’s chase policy, according to the Ferndale Chief of Police.
3
This was a so-called PIT maneuver. PIT maneuvers were against Ferndale policy, and the Chief of Police
had specifically ordered Officer Phillips never to use a PIT maneuver.
No. 15-2306 Latits v. Phillips Page 5
When Latits’s car stopped it was parallel and to the right of Officer Phillips’s car.
Officer Wurm pulled onto the grass parallel to the opposite side of Latits’s car. Latits slowly
began to drive forward through the opening between the cars of Phillips and Wurm, while
Officer Jaklic slowly drove towards the same opening from the opposite direction in an apparent
attempt to block it. Latits’s and Jaklic’s cars then had a very low-speed head-on collision.
Officer Jaklic testified that he was not injured and his police car suffered minimal damage to the
push bar on its front end.
At about the same time, Officer Phillips jumped out of his car and ran toward Latits’s car
from behind it.4 Phillips was alongside Latits’s front passenger-side door when Latits started
reversing away from Officer Jaklic’s car.5 Latits’s car can be seen reversing past Officer Phillips
and out of the frame of one dashboard camera with Phillips following on foot. One second later,
Latits’s car can be seen reversing into the frame of Phillips’s dashboard camera, and what is
apparently gunshots can be heard. Latits’s car rolls to a stop as Phillips enters the frame with his
gun raised. The dashboard camera of a fourth officer arriving at the time Latits was shot shows
that no cars or persons were immediately behind Latits as he reversed. Officer Phillips,
following in the same direction in which Latits was reversing, could see that no one was in
Latits’s direct path.
Seven shell casings were recovered from the scene matching Officer Phillips’s gun.6
Latits was struck by three bullets and died at the hospital later that morning. The autopsy
reported that the direction of the gunshot wounds to Latits’s chest and abdomen were from the
front to back. Less than four minutes passed from the time Latits first drove away from Officer
Jaklic to the time he was shot by Officer Phillips.
4
The Ferndale Chief of Police testified that Officer Phillips violated department procedures by running to
the suspect vehicle instead of taking a tactical position using his vehicle as cover.
5
Officer Phillips claims on appeal that the videotape shows him having to jump out of the way when Latits
drove backwards after colliding with Officer Jaklic’s car. The video instead shows that as Latits reversed, Phillips
was to the side of Latits’s car.
6
At deposition, Phillips recalled firing one volley of only four shots.
No. 15-2306 Latits v. Phillips Page 6
Phillips was terminated for his conduct during the pursuit that ended in the shooting death
of Latits. Among the reasons for Phillips’s termination, the Ferndale Chief of Police cited the
following violations of police policy: Phillips engaged in vehicular pursuit as the third police car
without permission, passed the secondary and primary vehicles in the pursuit, used a PIT
maneuver in violation of a direct order, and ran up to Latits’s car instead of taking a tactical
position using his vehicle as cover.
The Plaintiff sued under 42 U.S.C. § 1983 alleging that Phillips violated Latits’s clearly
established Fourth Amendment rights by using deadly force to terminate the chase. The district
court granted summary judgment to Phillips, concluding that his use of deadly force was
objectively reasonable. Latits timely appealed.
II. ANALYSIS
A. Standards of Review
We review grants of summary judgment de novo, viewing the facts in the light most
favorable to the non-moving party. Godawa, 798 F.3d at 462. To the extent that videos in the
record show facts so clearly that a reasonable jury could view those facts in only one way, those
facts should be viewed in the light depicted by the videos. See Harris, 550 U.S. at 380. To the
extent that facts shown in videos can be interpreted in multiple ways or if videos do not show all
relevant facts, such facts should be viewed in the light most favorable to the non-moving party.
See Godawa, 798 F.3d at 463. Summary judgment is appropriate if the materials in the record
show that there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law. Id. at 462.
This suit implicates the doctrine of qualified immunity. Public officials are entitled to
qualified immunity from suits for civil damages if either the official’s conduct did not violate a
constitutional right or if that right was not clearly established at the time of the conduct. Id. at
462–63. (citing Saucier v. Katz, 533 U.S. 194, 201–02 (2001)). Courts may consider those two
inquiries in either order. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
No. 15-2306 Latits v. Phillips Page 7
B. Whether a Constitutional Right Was Violated
The Fourth Amendment’s prohibition against unreasonable seizures protects citizens
from excessive force by law enforcement officers. Id. at 463. While officers may use some
degree of physical coercion to make an arrest, the Fourth Amendment requires the amount of
force to be objectively reasonable under the totality of the particular circumstances. Graham v.
Connor, 490 U.S. 386, 396 (1989). Among the factors analyzed to determine the constitutionally
permissible amount of force are “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Id.The reasonableness inquiry is an objective one, considered from the perspective of a
hypothetical reasonable officer in the defendant’s position and with his knowledge at the time,
but without regard to the actual defendant’s subjective intent when taking his actions. Id. at 397.
The court must avoid “the 20/20 vision of hindsight,” recognizing that officers in tense and
evolving situations may have to make a split-second decision about the amount of force that is
necessary. Id. at 396–97. The reasonableness analysis thus includes some “built-in measure of
deference to the officer’s on-the-spot judgment.” Mullins v. Cyranek, 805 F.3d 760, 766 (6th
Cir. 2015) (citations omitted). At the same time, the “fact that a situation unfolds quickly does
not, by itself, permit officers to use deadly force. Rather, qualified immunity is available only
where officers make split-second decisions in the face of serious physical threats to themselves
and others.” Id. at 766–67 (internal quotation marks, brackets, and citations omitted).
As a general rule, the Fourth Amendment prohibits the use of deadly force to prevent the
escape of fleeing suspects unless “the officer has probable cause to believe that the suspect poses
a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner,
471 U.S. 1, 1, 11 (1985). Of the three non-exclusive factors listed in Graham, “the threat factor
is ‘a minimum requirement for the use of deadly force.’” Mullins, 805 F.3d at 766 (quoting
Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005)); see also Ciminillo v. Streicher,
434 F.3d 461, 468 (6th Cir. 2006) (stating that a person has a “right not to be shot unless they are
perceived as posing a threat to officers or others”).
No. 15-2306 Latits v. Phillips Page 8
The Sixth Circuit has developed “a consistent framework in assessing deadly-force
claims involving vehicular flight.” Cass v. City of Dayton, 770 F.3d 368, 375 (6th Cir. 2014).
The “critical question” is whether the officer had objective “‘reason to believe that the [fleeing]
car presents an imminent danger’ to ‘officers and members of the public in the area.’” Id.(quoting Smith v. Cupp, 430 F.3d 766, 775 (6th Cir. 2005)). Deadly force is justified against “a
driver who objectively appears ready to drive into an officer or bystander with his car,” but
generally not “once the car moves away, leaving the officer and bystanders in a position of
safety,” unless “the officer’s prior interactions with the driver suggest that the driver will
continue to endanger others with his car.” Id. (citations omitted). The Sixth Circuit has found
deadly force justified by prior interactions demonstrating continuing dangerousness only when
the “suspect demonstrated multiple times that he either was willing to injure an officer that got in
the way of escape or was willing to persist in extremely reckless behavior that threatened the
lives of all those around.” Cupp, 430 F.3d at 775 (characterizing the suspects in both Scott v.
Clay Cty., 205 F.3d 867, 872 (6th Cir. 2000), and Smith v. Freland, 954 F.2d 343, 347 (6th Cir.
1992)).
To determine whether Latits presented an imminent danger to officers or the public at the
time Officer Phillips shot him requires analysis of both the moments before the shots were fired
and the prior interactions between Latits and Phillips. Just before the shots, the videos show that
Latits reversed past Phillips before Phillips raised his gun and before gunshots can be heard. In
Hermiz v. City of Southfield we stated that: “A reasonable jury drawing inferences in the estate’s
favor could determine that an officer that aimed and fired shots while to the side of the vehicle,”
after “the hood of [the suspect’s] car already passed the point where it could harm [the officer],”
“would have had time to realize that he was no longer in the path of the car and no longer in
immediate danger.” 484 F. App’x 13, 16 (6th Cir. 2012). Likewise, because Officer Phillips
fired after Latits’s car had passed the point where it could harm him, Phillips had time to realize
he was no longer in immediate danger.
The evidence also shows that Officer Phillips could see that no other officers or other
persons were in Latits’s path when Phillips fired. Latits was reversing away from Officers Jaklic
and Wurm, who were in front of him and to his left, respectively. Officer Danielson’s dashboard
No. 15-2306 Latits v. Phillips Page 9
camera shows that Phillips’s car was between her car and Latits’s car at the time of the shooting,
so Latits was reversing away from her as well. There were no other officers on the scene, and
there is no evidence or suggestion by the Defendant that members of the public were in the
immediate path of Latits’s car. Cf. Cupp, 430 F.3d at 774 (finding deadly force unreasonable
where the “record does not establish the presence of any bystander . . . whose physical safety
could have been endangered by [the driver’s] actions”). The videos displaying Officer Phillips’s
position show that he could see that no persons or cars were in the immediate path on which
Latits was traveling.
Phillips testified that after colliding with Officer Jaklic’s car, Latits looked directly back
at him, revved his engine, and moved the car towards Phillips, at which time Phillips fired his
weapon. The video evidence, however, contradicts this testimony and we view the evidence in
the light depicted by the video. See Harris, 550 U.S. at 381. Furthermore, the record includes
no evidence suggesting that by continuing to reverse, Latits’s intention was anything except to
flee. Given the above analysis, Latits did not objectively appear ready to drive into someone
when Officer Phillips shot him.
Several of our cases have concluded that deadly force was objectively unreasonable when
the officer was to the side of the moving car or the car had already passed by him—taking the
officer out of harm’s way—when the officer shot the driver. Godawa, 798 F.3d at 466–67;
Hermiz, 484 F. App’x at 16; Sigley v. City of Parma Heights, 437 F.3d 527, 531, 537 (6th Cir.
2006); Cupp, 430 F.3d at 774–75. But the fact that no one was in the car’s direct path at the time
the driver was shot does not end the analysis. Cass, 770 F.3d at 376 (“[T]he inquiry is not nearly
so narrow.”). We must also look to the prior interactions between Latits and Officer Phillips and
the potential of imminent danger to other officers or members of the public in the area. See id.
Because it is undisputed that Latits was fleeing to avoid arrest, we turn to the Graham
factor that analyzes the severity of the crime at issue. Officer Phillips knew from Officer Jaklic’s
broadcast that Latits was originally suspected of possessing narcotics—not a violent crime. The
second Graham factor asks if the individual poses an immediate threat to the safety of an officer
or others. The videos show that Officer Phillips first observed Latits’s car as it was turning to
avoid Officer Jaklic’s car; the district court determined that Phillips could see that Latits did not
No. 15-2306 Latits v. Phillips Page 10
try to ram Jaklic’s car. Latits then fled at no more than sixty miles per hour down an almost
entirely empty ten-lane divided highway at night. In his pursuit of Latits, Phillips passed only
one parked car, and no other pedestrians, cyclists, or non-police cars are visible on Phillips’s
dashboard camera for the remainder of the chase. The videos make clear that Phillips observed
Latits drive partially over a grassy median, attempting a U-turn, and then saw Officer Wurm’s
car hit Latits’s car twice, and that Latits did not ram Officer Wurm. Phillips then observed Latits
swerve across the empty highway, which was bordered by a cemetery and largely vacant state
fair grounds. As Officer Phillips sped past the two officers preceding him in the pursuit (in
violation of department policy), he could observe that Latits was able to straighten his car for
about five seconds before Phillips rammed him off the road (also in violation of department
policy and a direct order). Up to the point when Latits’s car came to a stop after Officer Phillips
rammed it off the road, Latits had shown no intent to injure the officers. Though Latits did
briefly lose control and swerve after Wurm hit him twice (for which Officer Wurm was
disciplined for violating department policy), there were no members of the public nearby to be
endangered and Latits appeared to regain control of his car before Officer Phillips rammed him.
Finally, after Latits’s car had come to a stop off the road, Officer Phillips observed Latits
slowly drive forward and collide with the front of Officer Jaklic’s car. However, the video
permits the reasonable interpretation that this collision was accidental, in which case it would
provide less justification for deadly force. See Sigley, 437 F.3d at 536; Vaughan v. Cox, 343
F.3d 1323, 1330 (11th Cir. 2003) (holding that a collision with a police car that could be viewed
by a jury as accidental did not automatically justify deadly force); cf. Godawa, 798 F.3d at 463
(finding that deadly force was unreasonable because a jury could determine that the officer
initiated the impact with the driver’s car rather than the driver intentionally targeting the officer).
Moving forward through the gap between the cars of Phillips and Wurm, Latits was not facing
head-on with Officer Jaklic’s car until one to two seconds before their impact, likely too late for
either car to avoid the low-speed collision. Viewing the video in the light most favorable to the
Plaintiff, the slow collision reveals intent to flee, not intent to injure officers. Whether a fleeing
suspect showed objective intent to injure officers is relevant to whether the suspect presented
sufficient danger to justify deadly force. See Sigley, 437 F.3d at 536 (reversing a grant of
summary judgment where it was not clear whether the suspect “intended to injure” others). The
No. 15-2306 Latits v. Phillips Page 11
videos additionally reveal that Latits did not commit felonious assault, which is also relevant to
the Graham factor addressing the severity of the crime. See Godawa, 798 F.3d at 466 (reversing
the district court for not viewing the evidence in the light most favorable to the Plaintiff when
considering which crimes the fleeing driver had committed).
Permitting Latits to continue to flee instead of shooting him would not have put the
public in imminent danger either. The chase occurred under circumstances in which risk to the
public was relatively low. Latits drove at a maximum of sixty miles an hour on a large,
effectively empty highway surrounded by non-populated areas (a cemetery and vacant state
fairgrounds), passing no pedestrians, cyclists, or motorists besides the police trailing him. Cf.
Walker v. Davis, 649 F.3d 502, 503 (6th Cir. 2011) (affirming the denial of summary judgment
to officer who rammed and killed a motorcyclist leading police on a five-minute chase at sixty
miles per hour through a red light down an empty highway in rural Kentucky). Latits’s flight
was on an effectively empty highway; he had shown no intention or willingness to drive
recklessly through residential neighborhoods. Altogether, Latits’s conduct prior to being shot,
when viewed in the light most favorable to the Plaintiff, showed a persistent intent to flee but not
an intent to injure, and never placed the public or the officers at imminent risk.
We must, however, also view the facts with due deference to the quick decisions Officer
Phillips had to make in a tense, uncertain, and rapidly evolving situation. Graham, 490 U.S. at396–97. Phillips testified that he subjectively believed Officer Jaklic’s broadcast that Latits had
tried to ram Jaklic’s car, and thought Latits was trying to ram an officer a second time when he
saw Latits’s car collide with Jaklic’s car about five seconds before Phillips fired at Latits.
“We have previously held that ‘[w]ithin a few seconds of reasonably perceiving a sufficient
danger, officers may use deadly force even if in hindsight the facts show that the persons
threatened could have escaped unharmed.’” Mullins, 805 F.3d at 767 (quoting Untalan,
430 F.3d at 315). But we must undertake an objective analysis, viewing the evidence in the light
most favorable to Latits, as we have done above. Thus, both Mullins and Untalan, in which we
held that deadly force was reasonable because a dangerous situation had evolved into a safe one
before the officers had a chance to realize the change, are distinguishable. There officers were
engaged in physical, hand-to-hand confrontations with a suspect who moments before being shot
No. 15-2306 Latits v. Phillips Page 12
had held a gun or knife. Id.; Untalan, 430 F.3d at 315. Here, Officer Phillips’s life was never in
imminent danger, and, under the objective analysis of Latits’s slow collision with Officer
Jaklic’s car, no other officer’s life was endangered in the moments before Phillips fired.
Furthermore, the short time between the collision with an officer’s vehicle and the
shooting does not, by itself, justify deadly force. In Godawa, for example, we held that it was
unreasonable for the officer to shoot at the driver two seconds after the officer had contact with
the driver’s car, even though the officer subjectively believed the driver had just targeted and
assaulted him with his car. 798 F.3d at 466; see also Cupp, 430 F.3d at 775 (“The fact that this
was a rapidly evolving situation does not, by itself, permit him to use deadly force.”). If the
shock of a collision to the officer was insufficient on its own to justify deadly force in Godawa,
such shock alone is also insufficient here, particularly where Latits collided with a different
officer than the one who shot him.
Phillips also argues that some level of recklessness permits deadly force even without the
driver’s intent to injure or ram, because extremely reckless driving can create the imminent
threat to others that can justify deadly force. See, e.g., Plumhoff v. Rickard, 134 S. Ct. 2012,
2017–18, 2021–22 (2014); Harris, 550 U.S. at 379–80, 384. But Supreme Court and Sixth
Circuit precedent finding deadly force reasonable to end a car chase is distinguishable because
those cases involved significantly more dangerous prior conduct by the driver, imminent risk of
harm to an identifiable party, or objective evidence of the driver’s intent to harm officers.
In several cases, the suspects demonstrated obvious willingness to endanger the public by
leading the police on chases at very high speeds and through active traffic. See Plumhoff, 134 S.
Ct. at 2017, 2021–22 (suspect swerved through traffic at over 100 miles per hour, passing more
than two dozen vehicles and forcing several to alter their course); Harris, 550 U.S. at 375, 379–
80 (suspect sped down narrow two-lane roads at over 85 miles per hour swerving around more
than a dozen cars on both sides of the double-yellow line, forcing cars on both sides to the road
shoulder); Clay Cty., 205 F.3d at 872 (suspect led police on twenty-minute chase up to 100 miles
per hour, forcing a motorist off the road); Freland, 954 F.2d at 344 (suspect fled at over 90 miles
per hour and ultimately crashed into a stationary police car). In other cases, officers fired only
after seeing another officer on foot in imminent danger of being injured by the suspect’s car or
No. 15-2306 Latits v. Phillips Page 13
already actually struck by the suspect’s car. See Cass, 770 F.3d at 372–73, 376 (officers fired
after suspect’s car struck both of them, knocking one down); Hocker v. Pikeville City Police
Dep’t, 738 F.3d 150, 151, 153 (6th Cir. 2013) (suspect collided with police car while an officer
was standing next to it, the officer’s arm became trapped in the police car’s door and he was
forced to backpedal as the suspect’s car pushed the officer’s car, at which time another officer on
the scene fired); Williams v. City of Grosse Pointe Park, 496 F.3d 482, 484 (6th Cir. 2007)
(officer who had his arm through the suspect’s car window was knocked down as the suspect’s
car accelerated, at which time another officer fired). Finally, some cases featured suspects who
officers reasonably believed to be carrying guns that they were willing to fire at officers (in
addition to highly reckless driving). See Mullenix v. Luna, 136 S. Ct. 305, 306, 309 (2015);
Dudley v. Eden, 260 F.3d 722, 724, 727 (6th Cir. 2001). Phillips argues that this case is
comparable to Plumhoff, Hocker, Williams, and Freland. As explained above, these cases are
distinguishable.
In sum, considering the totality of the circumstances in the light depicted by the video
and otherwise most favorable to the Plaintiff, we conclude that Latits did not present an
imminent or ongoing danger and therefore that the shooting was not objectively reasonable. In
addition, although police procedures do not set the bounds of the Fourth Amendment, we
consider it relevant that Officer Phillips repeatedly violated police procedures in both ramming
Latits and running up to his car. See Mullins, 805 F.3d at 768 (“Whether or not an officer is
following police procedures is certainly relevant to the question of reasonableness in excessive
force cases, but it is not necessarily conclusive proof that the Constitution has been violated.”).
For these reasons, we conclude that Officer Phillips’s use of deadly force was objectively
unreasonable and in violation of Latits’s constitutional rights.7
7
We need not address the parties’ arguments about a potential second volley of shots. Whether Officer
Phillips fired the seven bullets in one or two volleys, all shots were fired within a few seconds of one another and at
a time when the situation was the same for purposes of this reasonableness analysis (Latits’s car had already passed
Officer Phillips and was moving away from all officers on the scene).
No. 15-2306 Latits v. Phillips Page 14
C. Whether that Right was Clearly Established
Even if Officer Phillips violated Latits’s constitutional right, he is entitled to qualified
immunity if that right was not clearly established at the time of the violation—June 2010.
“A clearly established right is one that is sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.” Mullenix, 136 S. Ct. at 308 (citation
and internal quotation marks omitted). For this to occur, “existing precedent must have placed
the statutory or constitutional question beyond debate.” Id. (citation omitted). The precedent
clearly establishing a right can be in the form of a case of “controlling authority or a robust
consensus of cases of persuasive authority.” Plumhoff, 134 S. Ct. at 2023 (citation and internal
quotation marks omitted).
The Supreme Court has instructed that the question that must be beyond debate is a
specific one: Was the “particular conduct” violative “in light of the specific context of the
case.” Mullenix, 136 S. Ct. at 308 (citations omitted); see also Bolick v. City of E. Grand Rapids,
580 F. App’x 314, 320–21 (6th Cir. 2014) (“[W]e must “define the rights at issue ‘at the
appropriate level of generality—a reasonably particularized one.’” (quoting Hagans v. Franklin
Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012))). Stating that clearly established law
“does not require a case directly on point,” the Supreme Court recently reversed a denial of
qualified immunity because the lower court “failed to identify a case where an officer under
similar circumstances . . . was held to have violated the Fourth Amendment.” White v. Pauly,
137 S. Ct. 548, 551–52 (2017) (citation and brackets omitted). Accordingly, we look to
controlling authority, extant at the time of the violation, entailing similar conduct and
circumstance.
The Plaintiff has not identified any caselaw where an officer under sufficiently similar
circumstances was held to have violated the Fourth Amendment, and neither have we. The
Plaintiff relies on Sigley and Cupp to argue that Phillips violated clearly established law. The
dissent also argues that Sigley and Cupp had clearly established by 2010 that Phillips’s conduct
was unconstitutional. We have held that, as of 2007, Sigley and Cupp had clearly established
that “shooting a driver while positioned to the side of his fleeing car violates the Fourth
Amendment, absent some indication suggesting that the driver poses more than a fleeting threat.”
No. 15-2306 Latits v. Phillips Page 15
Hermiz, 484 F. App’x at 17.8 But Sigley and Cupp are distinguishable from this case in a
material way: Those cases involved officers confronting a car in a parking lot and shooting the
non-violent driver as he attempted to initiate flight. See Sigley, 437 F.3d at 530–31; Cupp,
430 F.3d at 769–70. Here, Phillips shot Latits after Latits led three police officers on a car chase
for several minutes—during which Latits repeatedly sought to evade capture—an important
factual distinction that sets this case apart from Sigley and Cupp.9 This case presents a close call,
but in light of the Supreme Court’s recent analyses in Mullenix and Pauly, these cases do not
suffice. They did not involve many of the keys facts in this case, such as car chases on open
roads and collisions between the suspect and police cars. Accordingly, although we now hold
that Phillips’s conduct fell outside the bounds of the Fourth Amendment, controlling authority at
the time of the events had not clearly established the rights we identify today.
Although it is relevant to the first prong of the qualified immunity analysis, see supra
Part II.B at 13, Phillips’s violation of Ferndale Police Department policies does not require a
different outcome. “[T]he fact that an officer’s conduct merely violates a departmental policy
does not cause that officer to lose their qualified immunity.” Bell v. City of E. Cleveland,
125 F.3d 855 (6th Cir. 1997) (citations omitted); see also City & Cty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1777 (2015) (“Even if an officer acts contrary to her training, however
. . . that does not itself negate qualified immunity where it would otherwise be warranted.”);
Russo v. City of Cincinnati, 953 F.2d 1036, 1044 (6th Cir. 1992) (“[T]he Supreme Court has
indicated that the violation of established procedure alone is insufficient to overcome a qualified
immunity claim.” (citing Davis v. Scherer, 468 U.S. 183, 194 (1984))). It must have been clearly
established that the conduct at issue violates the Constitution, not internal policies.
This case establishes important constitutional parameters. At the time of the actions of
Officer Phillips, however, it cannot be said that existing precedent made it clear to reasonable
8
While Hermiz itself is not controlling authority as an unpublished case, Sigley and Cupp, the cases that
established the caselaw cited in Hermiz, are controlling.
9
The dissent also raises Kirby v. Duva, 530 F.3d 475 (6th Cir. 2008), but that case, too, is materially
distinguishable. There, the driver voluntarily pulled over in response to police sirens, and the court concluded that at
the time he was shot, no one was in danger and his car was “blocked in.” Id. at 482.
No. 15-2306 Latits v. Phillips Page 16
officials that what Phillips did violated the Fourth Amendment. Thus, this case fails to satisfy
the “clearly established” prong of the qualified immunity doctrine.
III. CONCLUSION
We hold that Officer Phillips’s conduct was objectively unreasonable and in violation of
the Fourth Amendment. Its unreasonableness, however, was not clearly established at the time
of Officer Phillips’s actions, and he is therefore entitled to qualified immunity. For that reason,
we must affirm.10
10
Because we affirm the grant of summary judgment and the case will be dismissed, we need not address
the parties’ arguments regarding discovery and punitive damages.
No. 15-2306 Latits v. Phillips Page 17
________________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
________________________________________________________
CLAY, Circuit Judge, concurring in part and dissenting in part. The majority spends the
bulk of its opinion explaining how Officer Phillips’ use of deadly force was objectively
unreasonable, citing case upon case (many from before 2010, the year of the incident in
question) to conclude that Officer Phillips violated Latits’ constitutional rights. In the final
stretch, however, the majority abruptly shifts gears to hold that Latits’ constitutional rights were
not clearly established and that Officer Phillips is therefore entitled to qualified immunity. In so
holding, the majority has created a nearly impenetrable barrier for plaintiffs seeking to vindicate
their rights against governmental officials. Because I believe that the majority opinion is
contrary to governing case law, which clearly establishes that an officer may not shoot a fleeing
suspect who poses no danger to others, I respectfully dissent.
The facts, as revealed by the record and as presented by the majority, are as follows: On
the night of June 24, 2010, City of Ferndale Police stopped Latits for turning the wrong way onto
a divided boulevard. Officer Jaklic approached the car and noticed Latits attempting to hide
what appeared to be drugs. Jaklic told Latits to get out of the car, and Latits took off. Three
squad cars then pursued Latits on a chase through a parking lot and down an empty highway at
speeds not exceeding 60 m.p.h. Latits’ vehicle came to a temporary halt when he tried to make a
U-turn over the curb of the grassy highway median. At this point, Officer Wurm attempted to
make the same U-turn and hit Latits’ vehicle. Officer Wurm tried to reorient his vehicle, and he
hit Latits a second time. Latits straightened out his vehicle and began traveling northbound,
when, about five seconds later, Officer Phillips sped past Jaklic and Wurm and rammed into
Latits, thrusting Latits’ car across two lanes of traffic and off the road. Latits spun out to an area
of grass and concrete, leaving him parallel with Phillips’ car, thus ending the chase. All told, the
chase lasted about three minutes. And through the entirety of it, the only collisions that Officer
Phillips saw occurred when Officer Wurm twice hit Latits, and when Phillips, himself, rammed
into Latits’ back left. From Phillips’ vantage point, he could see that Latits had repeatedly tried
to maneuver around the officers’ cars to avoid hitting them.
No. 15-2306 Latits v. Phillips Page 18
With Latits stopped, Officer Wurm pulled onto the grass parallel to Latits and opposite
from Phillips. Latits slowly began to drive forward through the opening between Phillips and
Wurm, while Officer Jaklic slowly drove toward Latits’ front to block him in. Latits and Jaklic
had a very low-speed head-on collision, in which Jaklic was not injured and his car sustained
minimal damage.
In violation of police procedure, Officer Phillips jumped out of his car and ran toward
Latits’ car from behind it. Phillips was standing alongside Latits’ front passenger-side door as
Latits started backing away from Officer Jaklic’s car. Although Phillips could see that no cars or
persons were immediately behind Latits as he reversed, Phillips opened fire on Latits, and Latits’
car rolled to a stop. Latits was struck by three bullets and died at the hospital later that morning.
The unconstitutional nature of Phillips’ conduct would have been clear to a reasonable
police officer. Indeed, it was clearly established under Tennessee v. Garner, 471 U.S. 1, 11
(1985), that police officers may not fire at non-dangerous fleeing felons such as Latits.
See Bouggess v. Mattingly, 482 F.3d 886, 894–95 (6th Cir. 2007) (applying Garner to hold that
an officer who employs deadly force against a fleeing suspect without reason to believe that the
suspect is armed or otherwise poses a serious risk of physical harm is not entitled to qualified
immunity). In Garner, the Supreme Court held that the “use of deadly force to prevent the
escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”
471 U.S. at 11 (“Where the suspect poses no immediate threat to the officer and no threat to
others, the harm resulting from failing to apprehend him does not justify the use of deadly force
to do so.”).
Although Garner did not involve a preceding car chase, its holding was clear enough to
have placed Phillips on notice that his conduct was unconstitutional. Bouggess, 482 F.3d at 895(“Our circuit and others have held that some cases can be so obvious under Garner and
governing circuit precedent that officers should be presumed to have been aware that their
conduct violated constitutional standards.”) (citing Sample v. Bailey, 409 F.3d 689, 699 (6th Cir.
2005) and Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996)). Garner made plain
that deadly force cannot be used against an escaping suspect who does not pose an immediate
danger to anyone. That rule applies here, where reasonable police officers in Phillips’ position
No. 15-2306 Latits v. Phillips Page 19
would not have perceived a threat or danger to public safety. This conclusion is not changed by
the fact that the seizure occurred following a car chase that was not executed under hazardous
circumstances and where no parties (except evidently the decedent) were at risk.
The majority relies on Mullenix v. Luna, 136 S.Ct. 305 (2015), to hold that it was not
clearly established that an officer in Phillips’ position was prohibited from using deadly force
against a fleeing suspect. In Mullenix, officers approached the plaintiff’s car and told him that he
was under arrest. 136 S.Ct. at 306. The plaintiff sped off and led police “on an 18-minute chase
at speeds between 85 and 110 miles per hour.” Id. During the pursuit, the plaintiff twice called
the police dispatcher “claiming to have a gun and threatening to shoot at police officers if they
did not abandon their pursuit.” Id. A police officer positioned himself on a highway overpass
and fired at the vehicle, killing the plaintiff. Id. The relevant inquiry, the Court explained, “was
whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in
the [particular] situation [he] confronted.” Id. (internal quotation marks and citation omitted).
The Court concluded that none of its precedents “squarely govern[ed]” the facts presented, and
therefore, “[e]ven accepting that these circumstances fall somewhere between [existing cases],
qualified immunity protects actions in the ‘hazy border between excessive and acceptable
force.’” Id. at 306, 312 (quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004)). Nonetheless,
the Court distinguished Mullenix from other cases where the circuits denied immunity to officers
who shot suspects “who may have done little more than flee at relatively low speeds.” Id. at 312
(citing Walker v. Davis, 649 F.3d 502, 503 (6th Cir. 2011); Kirby v. Duva, 530 F.3d 475, 479–80
(6th Cir. 2008); Adams v. Speers, 473 F.3d 989, 991 (9th Cir. 2007); Vaughan v. Cox, 343 F.3d
1323, 1330–31, and n.7 (11th Cir. 2003)).
Unlike Mullenix, this is not a case where a police officer may have needed more judicial
guidance to determine whether the particular risk justified the use of deadly force. Indeed, the
majority concludes that Latits “did not present an imminent or ongoing danger” to officers or to
any civilians. This case therefore falls into the category of cases that Mullenix distinguished—
i.e., those squarely controlled by Garner.
In reaching its conclusion that Latits’ right to be free from the use of deadly force in these
circumstances was not clearly established, the majority markedly raises the legal barrier posed by
No. 15-2306 Latits v. Phillips Page 20
the qualified immunity defense beyond any existing legal standard, making it virtually
impossible for plaintiffs to overcome the defense even under circumstances where their rights
have obviously been violated. The majority quotes Mullenix as holding that “[a] clearly
established right is one that is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” 136 S. Ct at 308 (internal quotation marks
and citation omitted). The majority then takes this general proposition and applies it literally,
asking whether—along a continuum of more or less reasonable officials—any official could have
believed that he was not violating the right. If any official could have so believed, the majority
seems to conclude, then the right was not clearly established and hence there was no actionable
violation. Under the majority’s standard, no plaintiff could overcome a qualified immunity
defense if any official could conceivably believe that he was not violating the plaintiff’s rights.
But this newly minted standard is not the law. Instead, “the crux of the qualified immunity test is
whether officers have ‘fair notice’ that they are acting unconstitutionally.” Mullenix, 136 S. Ct.
at 314 (Sotomayor, J., dissenting) (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002));
see Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.”).
It was clearly established at the time of the shooting, based on Supreme Court and Sixth
Circuit caselaw, that an officer may not use deadly force against a fleeing felon who poses no
threat to others. Indeed, as early as 1983, this Court held:
Before taking the drastic measure of using deadly force as a last resort against a
fleeing suspect, officers should have probable cause to believe not simply that the
suspect has committed some felony. They should have probable cause also to
believe that the suspect poses a threat to the safety of the officers or a danger to
the community if left at large.
Garner v. Memphis Police Dept., 710 F.2d 240, 246 (6th Cir. 1983). Sixth Circuit caselaw is in
consensus on this point. See, e.g., Bouggess, 482 F.3d 886 (denying qualified immunity to
officer who employed deadly force against a fleeing suspect without reason to believe that the
suspect was armed or otherwise posed a risk of physical harm); Sigley v. City of Parma Heights,
437 F.3d 527, 537 (6th Cir. 2006) (denying qualified immunity to an officer who shot a fleeing
No. 15-2306 Latits v. Phillips Page 21
suspect where, “[v]iewing the facts in a light most favorable to the plaintiff, [the officer] was
running behind [the suspect’s] car, out of danger, and [the suspect] drove in a manner to avoid
others on the scene in an attempt to flee.”); Dickerson, 101 F.3d at 1152 (holding that despite
uncontroverted evidence of serious danger to officers stemming from the suspect’s clear
possession of a weapon, his recent firing of his weapon, and his threatening language toward the
police, because it was undisputed that the suspect was nonthreatening when he was shot, the
officer was not entitled to qualified immunity); Russo v. City of Cincinnati, 953 F.2d 1036, 1045
(6th Cir. 1992) (“[U]nder this court’s clearly established precedent, a person has ‘a right not to
be shot unless he [is] perceived to pose a threat to the pursuing officers or others.’”) (quoting
Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988)); Bibb, 840 F.2d at 350 (holding that where
an officer caught a suspect dismantling the officer’s car and then warned the suspect to stop, the
officer was not entitled to qualified immunity for shooting and killing the suspect in mid-flight).
This case law consensus has since been reaffirmed in cases like Godawa v. Byrd, 798 F.3d 457(6th Cir. 2015) and Walker, 649 F.3d 502.
Three cases in particular warrant further discussion: Smith v. Cupp, Sigley v. City of
Parma Heights, and Kirby v. Duva. In Smith v. Cupp, 430 F.3d 766 (6th Cir. 2005), this Court
addressed materially similar facts to the case at hand and held that the use of deadly force under
the circumstances violated the Fourth Amendment. No subsequent controlling precedent has
diminished the clarity of Cupp’s holding or its applicability to the present case.
In Cupp, this Court concluded that an officer was not entitled to qualified immunity for
his use of deadly force against a man fleeing in a car. In that case, the police officer had arrested
the plaintiff, whom the officer perceived to be intoxicated, for making harassing phone calls in
his presence. Id. at 769. The officer placed the compliant plaintiff in the back of his police
cruiser while he went to talk with a tow truck driver. The plaintiff then moved from the back
seat to the front and began to flee the scene in the police officer’s vehicle. The plaintiff drove
the police vehicle toward the officer and the tow truck driver. The officer moved out of the way
of the vehicle and fired four fatal shots at the plaintiff as he drove past. The officer claimed that
the plaintiff had directed the vehicle at him and the tow truck driver and that he shot the plaintiff
in self-defense. Id. at 770. The tow truck driver stated that the plaintiff may have redirected the
No. 15-2306 Latits v. Phillips Page 22
vehicle in order to follow the direction of the road, rather than to target the officer and himself.
Id. at 774. The tow truck driver also stated that the officer was “running towards the patrol car”
when he fired shots at the plaintiff. Id.After considering the evidence under the plaintiff’s version of events, this Court
concluded that the officer violated the plaintiff’s constitutional rights. The Court stated:
According to the plaintiffs’ evidence, [the officer] shot Smith after the police
cruiser was past [the officer] and there was no immediate danger to anyone in the
vicinity. [The officer’s] use of force was made even more unreasonable by the
fact that Smith had been cooperative up to this point, and was arrested for the
nonviolent offence of making harassing phone calls. Although there was some
danger to the public from Smith’s driving off in a stolen police car, the danger
presented by Smith was not so grave as to justify the use of deadly force.
Id. at 773. The Court said that a reasonable officer in this position “would not have perceived
danger to anyone at the scene,” including himself. Id. at 774. The Court further explained that,
“[a]lthough this circuit’s previous cases give substantial deference to an officer’s decision to
shoot an unarmed suspect in a car chase, the officer must have reason to believe that the car
presents an imminent danger.” Id. at 775.
Similarly, in Sigley, police arranged a controlled buy-bust operation to arrest a suspected
ecstasy dealer. 437 F.3d at 529. An informant parked his vehicle next to the suspect’s, and the
two completed a transaction through their driver’s side windows. Id. at 530. When the deal was
complete, officers closed in, blocking the suspect’s car with their vehicles. Id. Several officers
exited their vehicles, positioning themselves around the suspect’s vehicle, and ordered him to
stop his vehicle. Id. In the plaintiff’s version of events, the suspect was trying to maneuver his
vehicle around the officers’ in an attempt to flee when an officer pointed his gun into the
suspect’s driver’s side window and shot him in the back. Id. at 531. This Court denied qualified
immunity to the officer, holding that, “viewing the facts in a light most favorable to the Plaintiff,
[the officer] was running behind [the suspect’s] car, out of danger, and [the suspect] drove in a
manner to avoid others on the scene in an attempt to flee. Accepting these facts as true, [the
officer] would have fair notice that shooting [the suspect] in the back when he did not pose an
immediate threat to other officers was unlawful.” Id. at 537 (citing Garner, 471 U.S. at 11 and
Sample, 409 F.3d at 697).
No. 15-2306 Latits v. Phillips Page 23
The majority contends that Cupp and Sigley are insufficiently similar to the facts in this
case in order for it to be clearly established that Phillips’ conduct violated the law. It is a truism
that every case is distinguishable from every other. But the degree of factual similarity that the
majority’s approach requires is probably impossible for any plaintiff to meet. Indeed, the
majority’s attempt to meaningfully distinguish Cupp and Sigley is entirely unpersuasive. The
majority says that these cases are different from the instant case insofar as “each involved little
more than one or more officers confronting a car in a parking lot and shooting the driver as he
attempted to initiate flight.” That is precisely the situation we have here.1 Latits was shot as he
was slowly backing away and attempting to resume his flight from police. Unlike the plaintiff in
Mullenix, Latits made no threats, and he showed no intention to harm the officers or others.
Absent some indication that Latits presented more of a threat than the suspects in Cupp or Sigley,
preventing the resumption of a flight instead of a flight in the first instance is a distinction
without a difference.
Moreover, Kirby v. Duva, 530 F.3d 475 (6th Cir. 2008), invites even closer comparison.
In Kirby, police officers surrounded the plaintiff’s car during a traffic stop and opened fire on the
vehicle when the plaintiff tried to escape. Viewing the facts in the light most favorable to the
plaintiff, the evidence showed that the plaintiff was attempting to maneuver his car in a non-
threatening manner around the officers and their vehicles and that he was “[n]ot [going] very
fast.” Id. at 479 (alteration in original). Indeed, one witness testified that it looked like the
plaintiff “was trying to pull out of a parallel parking spot to get around [the officer’s vehicle].”
Id. “More importantly, under [the plaintiff’s] version of the story, none of the officers were ever
in harm’s way.” Id. In these circumstances, the Court held that “[t]he plaintiffs’ version of the
events . . . supports a holding that defendants violated [the decedent’s] Fourth Amendment right
to be free from excessive force.” Id. at 482. The Court explained:
Under that version, [the plaintiff’s vehicle] was moving slowly and in a non-
aggressive manner, could not have hit any of the officers, and was stationary at
1
Although the majority correctly points out that Latits had just led police officers on a car chase for several
minutes, if Dickerson tells us anything, it is that an officer’s conduct must be judged on the circumstances that
confronted the officer at the time he took the action. 101 F.3d at 1152 (holding that although the plaintiff had been
drunk and had fired nine shots inside his home prior to the officers’ arrival, officers were not justified in shooting
him because at the time he was shot he was walking with his hands by his side officers).
No. 15-2306 Latits v. Phillips Page 24
the time of the shooting. Consequently, reasonable police officers in defendants’
positions would not have believed that [the plaintiff] ‘pose[d] a threat of serious
physical harm, either to the officer[s] or to others.’
Id. (citing Garner, 471 U.S. at 11). The Court further held that Garner had clearly established
that “police officers may not fire at non-dangerous fleeing felons.” Id. at 483. The majority
attempts to distinguish Kirby on the grounds that “at the time he was shot, no one was in danger
and his car was ‘blocked in’.” This is a curious distinction to draw, when one considers that the
majority has concluded that in this case the Plaintiff similarly posed no danger to others.
Officer Phillips presented no evidence that Latits was violent, that he had a weapon, or
that he was going to endanger other individuals in the area. All that can be said about Latits’
driving, based on the majority’s description of the events leading up to the shooting, is that he
initiated a chase “in which risk to the public was relatively low,” that he tried to maneuver
around officers, like the plaintiffs in Sigley and Kirby, and that his vehicle was struck multiple
times by the officers’ vehicles. Moreover, when Officer Phillips shot him, Latits had shown no
intention to harm the police officers, and Phillips could see that no officers or other persons were
in Latits’ path as he backed away. Under these circumstances, it would have been clear to any
reasonable officer that they could not use deadly force against Latits.
Again, applicable case law clearly establishes that an officer should not be protected by
qualified immunity when the shooting victim poses no immediate danger to the officer or to the
public. Our panel is unanimous in its conclusion that the officer in this case acted in an
objectively unreasonable manner and needlessly cost a person his life. Because I also believe
that Latits’ right not to be seized by deadly force when fleeing arrest was clearly established at
the time he was killed, I respectfully dissent.