Police Officer Who Shot Burglary Victim Can’t Be Sued

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By Robert Wilhelm

An officer who shot to death a burglary victim can’t be sued, a federal appeals court decided April 19 ( Thomas v. City of Columbus , 2017 BL 127684, 6th Cir., No. 16-3375, 4/19/17 ).

The officer acted “objectively reasonably when he used deadly force here—even if facts beyond his knowledge meant that he actually faced no threat,” the U.S. Court of Appeals for the Sixth Circuit ruled in an opinion by Judge David W. McKeague.

Destin Thomas called 911 to report an ongoing burglary at his apartment. After wrestling with one of the burglars, Thomas left his apartment holding a gun.

He and one of the suspects ran toward an officer and got within 10 feet of him in seconds. The officer fired two shots, both striking Thomas, who died.

His father, William, sued the officer under 42 U.S.C. §1983, which allows individuals to sue cities and their officials for constitutional violations.

William Thomas alleged the officer used excessive force in violation of his son’s right to be free from unreasonable seizures—a Fourth Amendment violation.

The police officer moved for summary judgment, asserting qualified immunity as a defense.

The qualified immunity doctrine arises in cases brought against public employees under Section 1983 and protects them from civil lawsuits. The doctrine protects government officials unless they violated clearly established rights.

There was no issue as to whether Destin Thomas had a gun. The only issue was whether he raised or pointed it toward the officer.

Raising Gun Not an Issue

However, the Sixth Circuit said in throwing out the case that qualified immunity was appropriate even if Thomas hadn’t raised his gun.

“The Fourth Amendment only requires officers to act reasonably on the information they have; it does not require them to perceive a situation accurately,” the court explained.

The court acknowledged that the officer violated department procedures by approaching the apartment without backup, thus increasing the likelihood of having to use force.

“But those decisions were not seizures,” the court said. “Their reasonableness is not at issue.”

Instead, the court reviewed the officer’s decisions at the moment he decided to use deadly force.

It pointed out that the officer was responding to a dangerous call in a high-crime area. Further, the court explained that two people exited the apartment and ran toward the officer, one with a gun, closing the distance rapidly.

“Given these facts, a reasonable officer would perceive a significant threat to his life in that moment,” the court said. Thus, the decision to fire was “objectively reasonable.”

Judges Richard Allen Griffin and Raymond M. Kethledge joined in the opinion.

Nicholas A. DiCello, of Spangenberg, Shibley & Liber LLP, Cleveland, argued for Thomas. Timothy Joseph Mangan, of the City Attorney’s Office, Columbus, Ohio, argued for the defendants.

To contact the reporter on this story: Robert Wilhelm in Washington at rwilhelm@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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