TERESA ANN HENSLEY v. MICHAEL SCOTT PRICE
US Court of Appeals for the Fourth Circuit, Agee, Nov. 17, 2017,
Excessive Force- Officers were required to give verbal commands/orders prior to using deadly force against a man who posed no immediate threat other than holding a gun to the ground

This opinion is batshit crazy. He just pistol-whipped his daughter and started walking at officers with a gun in his hand, but because he wasn’t pointing the gun at the officers he wasn’t dangerous? That takes Monday-morning quarterbacking to a deadly level. How long does it take to raise a gun? Compare that to how long it takes to incapacitate someone once they start raising that gun. Guaranteed shot to the brain or spinal column in a dark, high-stress environment? I know these sound like trial issues, but a motion to dismiss isn’t a suspension of the laws of physics. These are commonly known facts. Guns are dangerous. People who have just pistol-whipped their offspring are dangerous. People approaching police with a gun in their hand are dangerous. It’s this level of uneducated pontification that discredits the judiciary and leads to the also-dangerous “cops vs. courts” mentality among police. Speaking of unreasonable, why would you not grant QI on the basis of good faith here??? You’re going to make them go through an entire trial when the Supreme Court just resolved that question last year. There’s almost no way that the officers can lose this case. EVEN if it comes back as a 4A violation, it’s still not clearly established that a warning is necessary. So… why hold it waived? It’s a waste. Though it did give 4CA a chance to drop a “sweet” two-page footnote…

Facts:
(Note- This “facts” section represent allegations viewed in the light most favorable to Hensley. On a motion to dismiss for qualified immunity, evidence from the deputies is not considered.)
In 2012, two North Carolina deputies responded to a domestic disturbance at 0615 hours. As they arrived at the location, they parked their cars in the front yard and remained in the vehicles.
After the deputies pulled up, David Hensley came out of the house holding a handgun. Hensley’s two daughters came outside with him. The deputies remained in their vehicles as Hensley struggled with his daughters on the porch and struck the older daughter with a handgun.
Hensley then walked off the porch toward the deputies. He turned and looked back at his daughters, then walked toward the deputies with the handgun pointed at the ground.
According to the lawsuit, the deputies did not say anything to Hensley. There were no warnings or orders given. According to the lawsuit, Hensley never raised the handgun toward the officers.
The deputies then shot and killed Hensley as he approached them.
The Hensley estate filed suit against the deputies, arguing that they violated Hensley’s Fourth Amendment rights as well as alleging various claims under North Carolina law.
Hensley contends that the Deputies violated the 4th Amendment for two reasons:
First, “under their version of the facts, when the Deputies killed Hensley, he was pointing the gun at the ground and was threatening neither the Deputies nor his daughters.” Under their view of the facts, “Hensley’s altercation with [his daughter] had concluded by the time he walked off the porch; therefore, because he never raised his weapon toward the Deputies, he was not immediately threatening to anyone at the scene.” Second, Hensley argues that the Deputies’ actions were “all the more unreasonable here because they shot without warning Hensley to drop the gun or communicating with him in any way.”
The deputies moved to dismiss the lawsuit, claiming qualified immunity.
The trial judge denied the dismissal, holding that viewing the facts in the light most favorable to Hensley, “a reasonable jury could conclude that the deputies had no objective basis upon which they could base a decision to use deadly force against Hensley.”
The deputies appealed, arguing that they were entitled to qualified immunity.
The deputies failed to argue that they were acting in good faith, and so that claim was not considered.

Held: The Fourth Circuit agreed with the trial judge that testimony would be needed in order to determine whether the deputies’ actions were reasonable.

Qualified Immunity- Qualified immunity shields government officials from liability in a § 1983 suit as long as their conduct has not violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified Immunity – Qualified immunity protects government officials from liability for “bad guesses in gray areas.”

Qualified Immunity- There are two parts to a qualified immunity claim for wrongful seizure:
(1) Was there an unconstitutional seizure?
AND (2) was this violation clearly established at the time of the alleged event such that “a reasonable officer would have understood that his conduct violated the asserted right”?

From the Case: Although the Supreme Court recently held that it is not “clearly established” that a warning is necessary in deadly force situations, the deputies “failed to raise—and, therefore, have waived—any argument that the right at issue was not clearly established.”

Deadly Force- An officer is entitled to use deadly force where he has probable to cause to believe that a suspect poses a threat of serious physical harm

Deadly Force – Whether deadly force is reasonable will depend on all of the circumstances and facts known to the officers at the moment that they used deadly force

Deadly Force – “The lawful possession of a firearm by a suspect at his home, without more, is an insufficient reason to justify the use of deadly force.”

Deadly Force – Absent any additional factors, “the mere presence of a weapon is not sufficient to justify the use of deadly force.”
Note: This is not to say that deadly force will never be called for when a weapon is observed; an officer will need to judge the threat posed by the suspect in question based on the circumstances confronting him/her.

From the Case: The Court found that, in the light most favorable to Hensley, a jury could believe that Hensley did not pose a threat to the officers when he stood in front of them with a handgun pointed at the ground. In the light most favorable to Hensley, the fact that Hensley had just struggled with his daughter didn’t mean that he intended to harm the officers. The struggle was over and a jury could find that Hensley no longer posed a threat.

Deadly Force – Warning – “An officer should give a warning before using deadly force unless there is an immediate threatened danger.” However, a warning is not reasonable if “the hesitation involved in giving a warning could readily cause such a warning to be the officer’s last.”

Deadly Force – Warning – If an officer directs a suspect to “stop, to show his hands or the like,” the suspect’s continued movement “likely will raise in the officer’s mind objectively grave and serious suspicions about the suspect’s intentions. Even when those intentions turn out to be harmless in fact… the officer can reasonably expect the worst at the split-second when he acts.”

From the Case: “Here, the Deputies gave Hensley no command to stop, drop the gun, or raise his hands.” In the light most favorable to Hensley: “because they gave no warning, the Deputies had no reason to suspect that Hensley posed an immediate threat other than the fact that he was holding a gun that was not pointed at them, but at the ground.”

From the Case: “We must agree with the plaintiffs. If a jury credited the plaintiffs’ evidence, it could conclude that the Deputies shot Hensley only because he was holding a gun, although he never raised the gun to threaten the Deputies. Indeed, he never pointed the gun at anyone. Moreover, the Deputies had ample time, under the plaintiffs’ evidence, to warn Hensley to drop his gun or stop before shooting him, but they concede they never gave any such warning. Because the use of force in such circumstances would be objectively unreasonable, we must affirm the district court’s summary judgment order denying the Deputies qualified immunity on the § 1983 claim.”