Virginia Lawyers Weekly VA Lawyers Weekly
Where a man sent text messages stating he had a gun, and then engaged in a heated argument with officers during which time he made erratic arm movements and refused to turn around and face the officers, the officers reasonably believed he was armed.
Background
Virginia police responded to a 911 call seeking help to locate Dillard Putman, who they were told was potentially armed and suicidal. After failing to find Putman in his house, two officers and a K-9 searched the surrounding woods. The dog quickly caught Putman’s scent, leading officers to find him lying in a shallow ditch.
Bodycam footage shows the subsequent heated encounter, with officers demanding Putman turn around and Putman angrily ordering them to leave. After a two-minute impasse, an officer twice released the dog, who bit Putman and caused a severe injury. The officers ultimately discovered Putman didn’t have a gun.
Putman sued under state law and 42 U.S.C. § 1983, alleging, among other things, violations of his Fourth Amendment rights. The district court denied the K-9 officer’s summary-judgment motion asserting qualified immunity, holding that the undisputed facts didn’t establish whether the officer had a reasonable belief that Putman was armed.
Jurisdiction
Putman claims there’s a genuine issue of fact for trial, pointing out that the district court found that “the facts are in dispute as to whether Harris had a reasonable belief that Putman may have been armed.” But although the district court’s language suggests a fact issue, none exist. The district court examined the undisputed facts — relying primarily on the bodycam video — and concluded that they didn’t establish “whether Harris reasonably could have believed that Putman may have possessed a gun.” It’s this legal judgment that this court examines.
Putman contends that the reasonableness of Harris’s belief is a disputed fact that this court can’t review in this interlocutory appeal. But whether an officer’s actions are “objectively reasonable” is a question of law, “without regard to their underlying intent or motivation.” This court doesn’t consider Harris’s subjective mental state, but judge “from the perspective of a reasonable officer on the scene.” Since this court’s review is purely one of law, it has jurisdiction over Harris’s appeal.
Merits
The district court relied on the bodycam video in denying summary judgment. But the bodycam footage doesn’t tell the whole story. For instance, it doesn’t show that Harris knew Putman had sent texts to his wife earlier in the day threatening to kill himself and stating he had a gun. And even though Putman claimed he was unarmed during the encounter, Harris couldn’t confirm this because Putman refused to turn around to show his entire waistband.
Even viewed in the light most favorable to Putman, a reasonable officer could have believed Putman was armed and thus posed an immediate threat. And since this “immediate safety risk [was] reasonably likely to be cured by” using the dog, Harris’s deployment was justified.
The district court emphasized a difference between “immediate danger” and “imminent danger,” noting that only the former justifies force that risks serious injury. Since Putman’s initial resistance was non-violent — limited to abrasive language and refusing to comply with orders — the district court concluded that he didn’t pose an “immediate” threat.
The district court’s view of things doesn’t account for Putman’s active resistance after the initial dog deployment. But even omitting that, this court has noted before that force that risks serious injury “could be justified in some cases where an arrestee’s non-compliance could be described as non-violent.” So long as there are “facts from which an officer could reasonably conclude that the resistance presents some immediate danger despite its non-violent character,” such force is warranted.
Those facts exist here. Putman’s texts conveyed that he may have been armed. Given the heated argument, Putman’s erratic arm movements and his refusal to face away from the officers, Harris could reasonably fear that Putman might pull a hidden gun. The result might well be different had Putman remained stationary or kept his hands away from his waistband. But Putman’s text conveying he was armed, combined with his aggressive and unpredictable behavior, reasonably suggested he was an immediate threat.
Putman argues that the officers could have used other methods to deescalate the encounter, such as asking if Putman was suicidal and leaving if he answered no. Of course, had the officers done that and Putman then killed himself, this court would likely have a different case before it. In any event, the issue is to assess only whether Harris’s chosen conduct falls within “the range of reasonable judgment.”
Reversed and remanded.
Putman v. Harris, Case No. 22-1360, April 19, 2023. 4th Cir. (Diaz), from WDVA at Abingdon (Jones). Julian Friedman Harf for Appellant. Andrew Lucchetti for Appellee. VLW 023-2-113. 15 pp.
