Virginia Lawyers Weekly VA Lawyers Weekly
Where an officer claimed she acted reasonably in shooting the robbery suspect because she could not see his left hand and he refused to cooperate with her commands, she had no specific evidence that he carried a weapon or posed a significant threat and therefore she used excessive force.
Background
Khaia Jones, a former Richmond police officer, shot Thomas Southworth in the elbow while arresting him for his suspected involvement in an unarmed robbery. During the arrest, Southworth did not comply with Jones’s orders to show his hands.
Finally, Jones ordered Southworth to show his hands and get out of the car. Southworth complied, but only partially; when he got out of the car, Jones could not see Southworth’s left hand. Just as Southworth got both feet on the ground, Jones fired her weapon, hitting Southworth in the elbow.
Southworth asserts claims against Jones for unreasonable seizure in violation of § 1983 and the Fourth Amendment and state law battery. Jones moves for summary judgment as to both claims.
Excessive force
Jones says it was objectively reasonable for her to conclude that Southworth posed a “significant threat of death or serious physical injury to the officer or others,” when he got out of the car because she reasonably believed he had and reached for a weapon. She argues that she reasonably believed Southworth had and reached for a weapon because he was wanted for strong-arm robbery; he did not cooperate with her commands to show his hands and she could not see his left hand when he got out of the car.
In the two decisions relied upon by Jones, the officers had specific evidence gleaned from their interactions with the suspects to support their beliefs that the suspect carried a weapon and posed a significant threat of death or serious physical injury. Here, in contrast, Jones points to no specific evidence based on her interaction with Southworth that he had and reached for a weapon as he got out of the car.
Other factors compel the conclusion that Jones’s actions were not reasonable. Southworth was wanted for lunch box snatching – a crime most often punished by afterschool detention. Next, Jones could not have reasonably believed that Southworth had and reached for a weapon or otherwise posed a significant threat.
In this situation, only a reasonable belief based on probable cause that Southworth had and reached for a weapon or otherwise posed a serious threat of death or serious physical injury could have justified Jones’s use of deadly force. The facts that a reasonable jury could find do not support such a belief. For all these reasons, Jones used excessive force when she shot Southworth.
Immunity
Courts “engage in a two-step inquiry, asking ‘whether a constitutional violation occurred’ and ‘whether the right violated was clearly established’ at the time of the official’s conduct.” For the reasons discussed above, a reasonable jury could conclude that Jones violated Southworth’s Fourth Amendment rights when she shot him in the elbow.
Jones argues that even if she violated Southworth’s constitutional rights, those rights were not clearly established at the time of her actions. Specifically, she asserts that it was not clearly established that shooting a suspect wanted for a violent felony after he disobeyed commands to show his hands and got out of the car without showing his left hand amounted to excessive force.
The court finds that “every reasonable official would have understood that” Jones violated Southworth’s Fourth Amendment rights when she shot him as he complied with her directive to get out of the car. Qualified immunity does not protect Jones from Southworth’s Fourth Amendment claim at this stage of litigation.
Battery
A reasonable jury could conclude that Jones did not reasonably apprehend immediate danger and, therefore, she unnecessarily used deadly force. For these reasons, any claim that Jones’s use of deadly force was “legally justified and objectively reasonable” falters.
The Fourth Circuit has interpreted “Virginia’s good-faith exception” as “congruent with the federal qualified immunity defense.” Thus, for the same reasons qualified immunity does not protect Jones, the court finds the good-faith exception does not protect her either.
Finally, when an officer acts from anger or malice , she loses the protection of “good faith.” Here, a jury observing Jones threatening to shoot Southworth, screaming loudly at him and cursing him could conclude that she acted from anger or malice In these circumstances, the “good faith” defense evaporates.
Defendant’s motion for summary judgment denied.
Southworth v. Jones, Case No. 3:20-cv-55, March 29, 2021. EDVA at Richmond (Gibney). VLW 021-3-158. 17 pp.
