On November 17, 2017 the United States Court of Appeals for the Fourth Circuit issued the opinion Hensley on behalf of North Carolina v. Price (876 F.3d 573).  The plaintiffs in this §1983 federal civil suit alleged that two sheriff’s deputies used excessive force when they shot and killed David Hensley outside his home on the morning of August 9, 2012. The purpose of this article is to provide an analysis of the decision as well as “takeaways” to consider when reviewing current use of force training.

This case is a civil suit that was brought by the estate of David Hensley against two Haywood County North Carolina deputies for excessive use of force. As is typical in these types of cases, the deputies sought qualified immunity on a motion for Summary Judgment. The District Court denied qualified immunity (167 F.Supp.3d 753) and the deputies appealed.    The United States Supreme Court set out the two-step process to determine qualified immunity in Saucier v. Katz, 533 U.S. 194 (2001).  In one step, the court has to determine whether indeed a constitutional violation has occurred. In the other step, the court has to determine whether the constitutional right violated was clearly established at the time of the violation. On a motion for summary judgment seeking qualified immunity, the court is only permitted to consider the undisputed facts and the disputed facts considered in a light most favorable to the plaintiff.  Accordingly, where the deputies dispute the facts or their version differs from that of the plaintiff, those disputed facts are not considered when reaching a determination on the motion for summary judgment.

Although this opinion is nearly 40 pages long, the facts considered by the majority in reaching the decision fit on a single doubled-spaced page.  The facts used by the majority in reaching their decision are as follows: At around 0615 in the morning in August 2012, the two deputies responded to what the majority referred to as a “domestic disturbance call.”  The officers parked their cars in the front yard and remained in their vehicles. Shortly after that, David Hensley and his two daughters walked out of the home onto the front porch. At this point the officers observed that David Hensley had a handgun. The deputies continued to watch the front porch from their cars as Hensley struggled with his daughters striking one of them with a handgun. After that, Hensley walked off the porch and towards the officers. According to the daughters’ testimony, Hensley held the handgun with the muzzle pointed towards the ground as he descended the stairs and walked towards the deputies. Also, according to the plaintiff’s version of the facts, Hensley never raised the gun towards the deputies or threatened them. The deputies never ordered Hensley to stop or to drop the weapon or any type of warning. The deputies conceded that neither of them ever spoke to Hensley. Shortly after Hensley walked into the yard the deputies exited their vehicles and fired at him. Hensley died as a result of the gunshot wounds.

Based on the facts as stated above, the Fourth Circuit held that David Hensley did not present a threat to the deputies because he was pointing his gun at the ground as he walked toward them and made no threats to them verbally. Furthermore, the court concluded that the deputies had ample time to warn Hensley to either “drop the gun” or to “stop” before they shot him.  In a 2-1 opinion (containing a vigorous dissent that considered a lot more of the facts that were excluded by the majority in reaching their decision) the Fourth Circuit upheld the District Court’s denial of qualified immunity based on these two conclusions.  As a result, absent any further appellate review, the case will go to trial so that a jury can determine which version of the facts will control the eventual outcome of the case.

In the many years that I have been teaching the legal aspects of law enforcement to law enforcement officers on every level across the country, I have sometimes been called upon to make sense out of an appellate decision that seems to defy common sense. This is one of those cases. While it is very important to remember that this is just a decision regarding a motion for summary judgment, and the deputies may very well “win the day” when the case goes to trial, the decision is still disturbing for a couple of reasons.

First, although the majority in this case stated that the reasonableness of the officers’ conduct should be based on a totality of the circumstances based on the information available to the deputies at the moment they used deadly force, they nevertheless omitted very significant facts in reaching their decision. Indeed, if you read only the majority decision you cannot be faulted for agreeing with their rationale. But upon reading the dissenting opinion, one becomes more informed of the facts so carelessly tossed aside by the majority.  By not including the same undisputed facts considered by the dissent, the majority opinion is based on something much less than a “totality of the circumstances.”

Second, both the District Court Judge and the majority in this opinion definitively determined that a person walking towards an officer with a gun in his hand but pointed at the ground presents no threat to the officers until such time that he either verbally threatens them or raises the gun in their direction (even after the same person uses the same firearm to strike a person in the head before approaching the officers).  In Graham v. Connor, 490 U.S. 386 (1989) the Supreme Court stated that: “The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  In so doing, the court created the “reasonable officer” standard.  Theoretically, the reasonableness of an officer’s use of force should be based on this objective reasonable officer standard instead of a reasonable person standard. The reason for this, of course, is that law enforcement officers possess special skill, training and authority and experiences that those who are not in law enforcement do not have. While it sounds really good on paper, the problem with the “reasonable officer” standard is in the application of the standard as demonstrated by the majority in this decision. How does someone who has never been a law enforcement officer determine the reasonableness of the actions of an officer under a totality of circumstances that they themselves have never experienced?  A “reasonable officer” would know how quickly a person can raise his arm and fire a firearm and would not put this degree of emphasis in the fact the weapon was pointed at the ground.

Whether this decision is the result of a trend or just an “outlier” remains to be seen.  However, there are a several lessons to be learned once we accept the decision for what it is. First, it is important to note that at least in the Fourth Circuit it is now “clearly established” that walking towards a known officer with a firearm in hand after hitting someone in the head with the firearm is not a threat in the absence of either verbal threats or raising the firearm towards the officer. Second, the court seemed to put a significant amount of weight in the fact that neither of the officers ever spoke to David Hensley.  They never told him to put the weapon down, nor did they tell him to stop as he approached them, nor did they warn him in any way. Accordingly, one significant take-away from this decision is to say something. Although the “warn if feasible” rule from Tennessee v. Garner, 471 U.S. 1 (1985) has often been treated as something more akin to a suggestion than a requirement, at least in the Fourth Circuit this warning has become almost an absolute requirement. Third, this case underscores the vulnerability of qualified immunity to officers as a result of less than truthful plaintiffs. Many LEO’s believe that if their actions are reasonable they will automatically get qualified immunity. That is true only to the extent that the plaintiff in the case sets forth a version of the facts that match the version that the LEO offers. The problem is that qualified immunity raised on a motion for summary judgment can only be based on undisputed facts as well as the facts presented by the plaintiff where they differ from those of the officer.  If there is a dispute of facts that are relevant and material to the determination of the reasonableness of the use of force, then summary judgment is not appropriate because it is the role of the jury to determine which version of the facts is indeed the truth.