Court: Officer who shot suspect in the back did not violate clearly established law, entitled to qualified immunity
The officer, believing the suspect was armed and that a fellow officer was in danger, shot the suspect from behind
On August 12, 2019, the United States Court of Appeal for the Eighth Circuit issued an opinion regarding the shooting death of Ryan Stokes by Kansas City police officer William Thompson. 
Thompson and his partner received a radio message that other Kansas City officers were pursuing on foot two men suspected of a cell phone theft. Seconds later, Thompson spotted Stokes, who matched the description of one suspect, running into a nearby parking lot. Stokes ran to the passenger side of a parked car and briefly opened and shut the door. Stokes then turned and faced an officer who had been chasing him during the foot pursuit. Officer Thompson fired three shots at Stokes, hitting him twice in the back. Stokes died shortly thereafter.
Both sides of this litigation offered starkly different versions of critical facts. Thompson asserted the defense of qualified immunity and claimed that he saw Stokes with a firearm when he entered the parking lot and believed he intended to ambush the officers pursuing on foot. Stokes’ family claimed that Stokes never had a gun and was attempting to surrender when he was shot. The parties also dispute whether Thompson said anything to Stokes before firing.
Police found a gun inside the car on the driver’s seat after the shooting. The discovery of the gun supported Thompson’s claim that Stokes was armed when he initially ran into the parking lot toward the car. However, the car’s owner, a friend of Stokes, claimed ownership of the gun and stated that it had been in the car all night.
The Court of Appeals observed that in cases involving officer assertions of qualified immunity at the pretrial stage, the court must accept the plaintiff’s version of disputed material facts in the absence of clear evidence to the contrary, e.g., video evidence. Accordingly, the court remanded the case back to the lower court for the purpose of “specifically identifying the plaintiff-friendly version of the disputed facts,” which the lower court had not done.
Remand and the second ruling by the Eighth Circuit
Upon remand, the lower (Federal District Court) adopted the plaintiff-friendly version of the disputed facts and ruled that Officer Thompson had not violated clearly established constitutional law and was entitled to qualified immunity. The plaintiffs appealed and the Eighth Circuit reviewed the case for a second time. 
The court reviewed only the plaintiff's version of disputed material facts. This version included the following: “Officer Thompson … was standing behind Stokes at the time, [and] saw him raise his hands to his waist. Misinterpreting the gesture as threatening, … fired without warning at Stokes, who was trying to surrender.”
The court explained that it is legally required to take this approach so that “even if Officer Thompson insists that he saw a gun in Stoke’s hand during the chase, we must assume that he did not have one.” 
Officer entitled to qualified immunity
The court ruled that Officer Thompson was entitled to qualified immunity because he did not violate clearly established constitutional law. In making this determination, the court reviewed an earlier Eighth Circuit opinion in Thompson v. Hubbard.  In Hubbard the suspect fit the description of a person involved in an armed robbery with shots fired. Officer Hubbard of the Pine Lawn (Missouri) Police Department, confronted the suspect as he attempted to enter his car. The suspect avoided capture and ran.
The suspect scaled a short fence during a foot pursuit. He fell to the ground; got up; looked over his shoulder at Hubbard behind him with his hands hidden from Hubbard’s view. He then “moved his arms as though reaching for a weapon at waist level.” Hubbard yelled for him to stop but he continued to move his arms. Hubbard then fired once, hitting the suspect in the back and killing him. No weapon was found on or near the suspect’s body.
The court in Hubbard ruled that Officer Hubbard did not violate the Fourth Amendment and was entitled to qualified immunity. The court explained that “an officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun.” The court, quoting from a Tenth Circuit opinion in Ryder v. City of Topeka,  explained, “a requirement that a suspect actually have a weapon would place police in a ‘dangerous and unreasonable situation.’”
The Eighth Circuit in the instant matter applied its earlier decision in Hubbard to the situation presented here. The court observed, “Even under the plaintiff-friendly version of the facts, Officer Thompson faced a similar choice (to that of Officer Hubbard) here: use deadly force or face the possibility that Stokes might shoot a fellow officer. And just like in Hubbard, Officer Thompson could only see the suspect from behind, which obscured his view and required a ‘split-second judgment in circumstances that were tense, uncertain, and rapidly evolving.’” 
- Police officers may constitutionally use deadly force when an “officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” 
- The Eighth Circuit ruled in the two cases discussed above that, notwithstanding the fact that both suspects were shot in the back, both officers were entitled to qualified immunity.
- In both cases, the suspects had their backs turned away from the officers and made movements consistent with reaching for a firearm.
- Although it was discovered after the fact that neither had a firearm at the moment of the shooting, the court ruled that “an officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun.” 
- Officers chasing a fleeing felon with a gun in hand must realize the inherent danger existing in the pursuit. The suspect can decide to shoot, turn instantly, and fire several shots before the officer can respond. 
- Force Science Executive Director William J. Lewinski has authored several articles pertaining to time and motion studies that are relevant to the issue of action vs. reaction, i. e., the dangerous time gap between the presentment of a deadly threat and an officer’s ability to react to it.  It is incumbent upon police officials to educate state and local prosecutors to this inherent danger before they face community pressure to charge officers involved in shootings of this nature. Legal decisions of this nature and the time and motion shooting studies mentioned herein will serve as valuable tools in the educational process.
- The case to be made to prosecutors is simple: Officers should not be charged with a crime when they act within the boundaries of the U.S. Constitution.
1. N.S. v. Kansas City Board of Police Commissioners, 933 F.3d 967 (8th Cir. 2019).
2. N.S. v. Kansas City Board of Police Commissioners et Al., (No. 20- 1526) (8th Cir. 2022)
3. The legal rationale for this confusing legal principle is that judges are supposed to rule on matters of law and juries are supposed to decide matters of fact. Since no jury is involved in pretrial decisions pertaining to qualified immunity, appellate courts must accept plaintiffs’ versions of disputed material facts unless there is clear and convincing evidence to the contrary. If the case proceeds to a trial, the jury will have the opportunity to adopt whichever set of disputed facts it determines to be most credible.
4. 257 F.3d 896, 898 (8th Cir. 2001).
5. 814 F.2d 1412, 1419 (10th Cir. 1987).
6. (Quoting) from the Supreme Court opinion in Graham v. Connor, 490 U.S. 386, 396-97 (1989).
7. Tennessee v. Garner, 471 U.S. 1, 3 (1985).
8. The Supreme Court ruled in Garner that if feasible, an officer should give a warning before using deadly force. See Garner, 471 U.S. 1, 12.
9. Other federal circuit courts of appeal have ruled in favor of police officers who have shot suspects in the back when the officers had a reasonable belief that the suspect was armed or moving toward a weapon. See, e. g, Colston v. Barnhart, 130 F.3d 96 (5th Cir. 1997); Forrett v. Richardson, 112 F.3d 416 (9th Cir. 1997); Ryder v. City of Topeka, 814 F. 2d 1412 (10th Cir. 1987); Montoute v. Carr,114 F.3d 181 (11th Cir. 1997); Quiles v. City of Tampa Police Department, 596 F. App’x 816, 819-820 (11th Cir. 2015). See also, Davis v. McCarter, 569 F. Supp.2d 1201, 1206-1207 (D. Kansas 2008).
10. See, William J. Lewinski, “Why is the suspect shot in the back?” Police Marksman, Nov./Dec. 2000, pp. 20-28; “The Speed of a Prone Subject,” Law Enforcement Executive Forum, Vol. 17, No.3, Dec. 2017; “Time to Start Shooting? Time to Stop Shooting? The Tempe Study”, Police Marksman, Sept/Oct. 2001; “Ambushes Leading Cause of Officer Fatalities – When Every Second Counts: Analysis of Officer Movement from Trained Ready Tactical Positions,” Law Enforcement Executive Forum, 2015.