OIS Of Apparently Unarmed, Fleeing Teen Must Go To Jury--But Media Gets It Wrong As Usual

BOUGGESS v. MATTINGLY, USCA-6 No. 06-5619, 2007 U.S.App. LEXIS 8614, on appeal from USDC-KYWD, before ChUSCJ Boggs, USCJs Daughtrey, Gibbons, opinion by Boggs, filed 16 Apr 2007.

LONG STORY SHORT: Plaintiff presented evidence that an officer shot and killed an apparently unarmed, fleeing suspect who posed no immediate danger; qualified immunity therefore did not protect the officer from jury trial or possible liability. Binding in KY, MI, OH, TN.

FACTS: Defendant, an undercover officer in the Louisville, KY Metro PD, was sitting in a car in a grocery store parking lot, wired for sound and waiting for suspects to arrive for a prearranged crack cocaine deal. Other officers were listening covertly, and Officer Thomerson was watching. If Defendant needed help, he could say a code word and the other officers would intervene. When the suspects, including Newby, walked up to Defendant's car, they reached inside and stole money, then ran away. Defendant got out of his car, thinking that they had all left the scene, but saw Newby bending over to pick up a $20 bill. Defendant tried to arrest Newby, whom he did not think was armed, but Defendant also knew that drug dealers normally carry guns. Newby resisted arrest, and according to Defendant, tried to take his concealed Glock 22 away. Defendant also testified that he deduced from the look in Newby's eyes that Newby meant to kill him.

Officer Thomerson, the grocery store manager, and three people in a car nearby observed the struggle. No one saw any firearms or heard any shots until after Newby broke loose and ran. Defendant drew his Glock 22, which can be loaded with up to 16 shots, and fired at Newby, hitting him three times in the back; upon examination, Defendant's pistol had 11 live rounds remaining. After Defendant began firing, Newby checked his waistband as he ran. Newby ran around a corner and sat down. Defendant, Officer Thomerson, and a third officer approached Newby, who struggled as the third officer handcuffed him. Newby had a gun in his waistband, but Defendant never said anything to the effect that he thought Newby was armed, nor did Defendant ever say the code word for danger. Newby soon died of gunshot wounds.

PROCEDURE: Plaintiff, Newby's mother and administrator of his estate, sued Defendant in U.S. District Court for the Western District of Kentucky per 42 U.S.C. § 1983 for violating Newby's Fourth Amendment right to be free from unreasonable seizure. Defendant moved for summary judgment on qualified immunity grounds, arguing that a reasonable officer in his position could lawfully have used deadly force to stop Newby. Plaintiff conceded that Defendant had probable cause to arrest Newby for dealing cocaine and resisting arrest, but responded that no reasonable officer would have shot Newby. The trial court ruled that material facts were still at issue and that a reasonable jury could credit Plaintiff's evidence that Newby posed no deadly threat and had not tried to kill Defendant or take his weapon. Under those facts, no reasonable officer would have shot at Newby. QUALIFIED IMMUNITY DENIED. Defendant appealed to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: Fourth Amendment law is clear and firm that only when an officer has probable cause to believe that a fleeing suspect poses a threat of serious physical harm may the officer use deadly force to stop the suspect. If the officer knows the suspect to be armed, then that fact weighs in favor of justifying force. However, the officer must also reasonably believe that the suspect will use the weapon to inflict harm. Shooting at all fleeing felons is worse than chasing them and not catching all of them.

Defendant testified that Newby fought with him and tried to take his weapon, and that drug dealers are usually armed. A jury might well credit his evidence, and take into account that Newby did in fact have a gun, and find Defendant not liable. But Defendant indisputably never said the danger code word, and never told other officers he thought Newby was armed. At the summary judgment stage, the Sixth Circuit had to review the evidence in the light most favorable to Plaintiff, and a reasonable jury could find that Newby never drew a weapon, never threatened Defendant, never tried to take Defendant's gun, and ran directly away without any indication that he was going to hurt anybody. If so, no reasonable officer in Defendant's position would have believed deadly force to be justified. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.

EDITORIAL: Not in the opinion are a couple of things you should know: Mattingly was promptly indicted for murder, but the jury walked him on that charge. They deadlocked on a charge of reckless endangerment, which prosecutors soon dropped, and Mattingly's lawyers had his record expunged under state law. But he also got fired from the force, and never got his job back.

Now if you've stayed with me so far, you know that all the Sixth Circuit really said is, Newby's family can take it to trial because they have enough evidence. NObody has won or lost the suit yet. But Mattingly was white and Newby was black, so therefore the news media has no use for facts and just assumes the white guy is guilty. Brett Barrouquere, a racist idiot flying the Associated Press flag, lied about this case, claiming that the Sixth Circuit already ruled that Mattingly "acted in 'bad faith' when he fatally shot a 19-year-old" and "lacked justification to shoot" and "overreacted in shooting Newby" and so forth and so on. The Sixth Circuit said no such thing! They only said that's what a jury COULD BELIEVE from the evidence. That is how summary judgment works. Since the criminal jury turned him loose on the same evidence, it's not hard to believe that a civil jury would do the same.

But again, the news media cannot be bothered with facts or simple legal concepts. I sincerely hope that Mattingly sues racist idiot reporter Brett Barrouquere for libel. If racist idiot reporter Brett Barrouquere sues ME for calling him a racist, he will not win, because I have EVIDENCE for MY opinions. Racist idiot reporter Brett Barrouquere misreported a court opinion to make a white officer look automatically guilty when the opinion said no such thing. There can be no other motive than racism for such willful misreporting. Also, racist idiot Brett Barroquere should be aware that the last time I had to defend a defamation suit, the other side spent some $100,000 trying to beat me, and didn't come close. So, racist idiot Brett Barroquere, either correct your lies and tell no more future lies, or I will keep exposing you as a racist idiot, Brett Barroquere.