4A 4C 2006: When Subject Shot First, OIS Was Justified, Quack Expert Wasn't

CARR v. DEEDS, 453 F.3d 593 (4th Cir. 2006), No. 05-1472, 05-2186, 2006 U.S.App. LEXIS 17461, on appeal from USDC-WVSD, before USCJs Traxler, Gregory, SrUSCJ Hamilton, opinion by Traxler, filed 21 Jul 2006.

LONG STORY SHORT: When decedent had credibly threatened to kill himself and others rather than go to jail or a mental hospital, was known to possess a handgun, and shot at officers instead of submitting to arrest, a trooper who shot at him was entitled to qualified immunity. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a Trooper of the West Virginia State Police, arrested Decedent on 20 June 2001 on an arson warrant. Medical evaluation at the jail showed that Decedent had minor cuts and scrapes, which he claimed Defendant had inflicted. Decedent did not file any complaints about this incident.

Plaintiff, Decedent's mother, obtained a court order on 10 July 2001 for Decedent to be involuntarily committed for a mental health examination due to his addictions to alcohol and controlled substances, and because Decedent had said he would rather take a bullet in the head than go to jail again. Decedent, who also had two outstanding arrest warrants, was last seen leaving a friend's house, smoking marijuana and carrying a handgun, after telling them he would do what it took not to go back to jail.

Deputy Farmer of the Greenbrier County Sheriff's Office spotted Decedent's vehicle and pursued it. After a few miles, Decedent stopped in the middle of the road and ran away. Deputy Farmer ran after him, and Decedent fired twice at him and disappeared into the woods. Deputy Farmer called for assistance, and many officers including Defendant converged on the area. Over the radio, the officers heard that a gunman had tried to stop a motorist nearby.

Defendant and Trooper Bradley saw Decedent approach them in a crouched position, gun in hand. Trooper Bradley ordered Decedent to drop the weapon, but instead he dropped to the ground and began firing. Defendant fired his rifle and Trooper Bradley fired his shotgun while ordering Decedent to drop his weapon, but he kept firing until the lawmen killed him with more gunfire. A medical examiner's report indicated that multiple undetermined shotgun wounds to the head, back, abdomen, and upper and lower extremities were the cause of death, and there was no evidence of close range firing on the skin.

PROCEDURE: Plaintiff sued Defendant and others in U.S. District Court for the Southern District of West Virginia per 42 U.S.C. § 1983 for violating Decedent's Fourth Amendment right to be free from unreasonable seizure, both as to the 20 June arrest and the 10 July gunfight. Attached to the complaint were reports from a purported independent medical examiner from California who concluded that the officers had unlawfully executed Decedent by means of close-range handgun bullets to the head after the shotgun wounds had disabled and disarmed him. Defendants submitted their required disclosures as to their medical expert, but Plaintiff supplied no further information about theirs.

After discovery closed, Defendants moved for summary judgment on qualified immunity grounds, and also to exclude Plaintiff's expert. The trial court ruled that Decedent's injuries in the 20 June arrest were de minimis, and that his death on 10 July was justified. QUALIFIED IMMUNITY GRANTED. Also, since Plaintiff had more than a year to provide her expert disclosures, her expert would be excluded. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: While the intrusiveness of a seizure by deadly force is unmatched, officers may use deadly force if they have probable cause to believe that a subject poses a threat of serious physical harm to the officers or others. Officers' decisions to use deadly force are not subject to the luxury of hindsight, and if the officer acted as a reasonable officer would have at that time, he will not be liable.

Here, Decedent had two warrants, a mental commitment order, a handgun, a history of threats to himself and others, and expressed intent not to be taken alive. He shot at the first officer he saw, and then when Defendant and his partner ordered him to disarm himself and surrender, he shot at them too. No record evidence contradicted this scenario. The Fourth Circuit had no trouble exonerating Defendant for shooting back.

Neither did the trial court abuse its discretion in excluding Plaintiff's expert, who provided the sole evidence for Plaintiff's contention that Defendant and others had executed Decedent after he was disarmed and no longer resisting. Expert disclosures are often the centerpiece of cases that depend on expert testimony, and the civil procedure rules requiring full and timely expert disclosure are to be taken very seriously. All Plaintiff did was attach dubious reports to her complaint, without listing his qualifications, prior cases, publications, or compensation, leaving Defendants unable to prepare for deposing him. Plaintiff did not show substantial justification for noncompliance with expert disclosure rules, so the trial court's discretion to exclude Plaintiff's expert would not be disturbed.

As to the 20 June arrest, Decedent's injuries were de minimis. No evidence showed that Defendant inflicted them maliciously or sadistically, or even (other than Decedent's claims to his family, which were hearsay) that Defendant inflicted them at all. The trial court's judgment was AFFIRMED in all respects.

EDITORIAL: I guess mothers are entitled to act this way, but assclown trial lawyers and their assclown quack doctors are not. No wonder they never provided any of his material, because it would have made them look even stupider than they already did. What's more, none of the gunshot wounds were rifle bullets, but what do they do? According to the opinion, they sue the officer with the RIFLE (despite the lack of rifle wounds) and don't get around to serving process on the officer with the SHOTGUN (despite the abundance of shotgun wounds). Who's picking on whom here?

Not only that, why didn't the Fourth Circuit or anybody else notice that since Trooper Deeds didn't even hit the guy, he should have walked on that basis alone! If you shoot at someone and neither hit him nor induce him to surrender, you haven't "seized" him and can't be liable--it's that simple.

Lord's peace on Troopers Deeds and Bradley for doing what they had to do in this tragedy.