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Qualified immunity for fatal shooting involving a vehicle as a weapon

The appellate court began its analysis by noting that a charging vehicle can be a deadly weapon

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Tousis v. Billiot, 2023 WL 6860926 (7th Cir. 2023)

DEA agents suspected Gus Tousis of drug trafficking. An agent obtained a warrant to place a tracking device on Tousis’ car. The tracker transmitted the location of the car and the speed at which it was traveling. Agents believed Tousis was dealing with Vernon Turner, a source in the Aurora, Illinois, area, and that Tousis would be going to Turner’s home on June 2 to buy drugs.

The agents watched Turner’s home and saw Tousis arriving in his SUV. An agent saw Tousis enter Turner’s garage carrying a bag, and then leave the garage with the same bag. Based on a change in the bag’s appearance, the agent believed a drug deal had occurred. The agent shared his observations with the other agents.

The DEA agents asked for local officers to conduct a traffic stop of Tousis’ SUV after he drove away from Turner’s home. When an officer attempted the stop, Tousis fled at high speed. The tracking device showed the car accelerated from 64.6 mph to 115.2 mph during the chase. The officers ended their pursuit because of the danger posed to officers and the public by Tousis’ reckless flight.

The officers last saw Tousis weaving in and out of traffic at dangerous speeds. DEA agents followed at a distance, monitoring the tracking device. They intended to follow Tousis to his residence or to some place where they could surround and more safely arrest him. Special Agent Keith Billiot, driving an unmarked car, heard Tousis was heading eastbound on the interstate at a high rate of speed. He spotted Tousis but did not activate his lights or siren. Instead, Billiot followed Tousis off the highway and observed him driving at normal speeds. However, Tousis was taking evasive action, suggesting he suspected he was being followed.

Once Tousis stopped at a red light behind other cars, the agents attempted to box him in and arrest him. Billiot activated his emergency lights and siren and pulled in front of Tousis’ car. Billiot exited his car with a rifle, wearing a DEA vest, and ran toward Tousis’ car, shouting commands to turn off and exit the car. Another officer approached the vehicle from the rear. Billiot raised his rifle and pointed it at Tousis.

Tousis drove the car forward, with nothing between Billiot and Tousis’ car. Billiot fired a single shot. Backpedaling from the moving car, Billiot fell onto the median, injuring his back. The bullet struck the steering wheel; a fragment hit Tousis in the neck as he was maneuvering his vehicle away from Billiot. Tousis’ car then accelerated, jumped a curb and struck a light pole. Tousis died. Officers recovered 300 grams of cocaine from Tousis’ car.

Tousis’ daughter sued. She claimed Tousis was not trying to drive into Billiot but was driving to the right of him in an effort to escape. The evidence conclusively showed Tousis’ SUV was in forward motion at the time of the shot. The trial court denied qualified immunity for Billiot and he appealed.

The appellate court began its analysis by noting that a charging vehicle can be a deadly weapon, citing the standard applied when an officer is faced with a deadly weapon (Tolliver v. City of Chicago, 820 F.3d 237 (7th Circuit 2016)):

If a suspect threatens the officer with a weapon, that risk of serious physical harm has been established…In assessing whether force was excessive, we must analyze the actions of the officer from the objective perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight…Moreover, the reasonableness calculus must allow for the fact that officers are often forced to make split-second decisions about what amount of force is necessary in circumstances that are tense, uncertain and rapidly evolving.

The court observed, “Billiot was immediately in front of Tousis’s car, much less than two car lengths away, when the vehicle began to move forward. That the wheels were turned to the right does not change the calculus. First, in a very small space, even a car maneuvering to the right poses a serious danger to a person standing in front of it. Cars making turns do not proceed horizontally; they follow an arc, and the undisputed evidence establishes that Billiot was standing very close to the front end of Tousis’s car when it began to move forward and to the right.”

The plaintiff countered, claiming Billiot placed himself at risk when he moved toward Tousis’ SUV. The court stated Billiot had no way of knowing whether Tousis would accelerate toward him or steer away from him. The court held, “A reasonable officer in these circumstances would be in fear of being hit by the moving vehicle.” Even if the plaintiff was correct in her belief that Tousis was not trying to run over Billiot, but was just trying to continue his escape, Billiot was compelled to act based on what he saw and what he knew about Tousis’ recent highly reckless driving as he fled from the attempted traffic stop. The court cited the Supreme Court decision in Plumhoff v. Rickard (572 U.S. 765, (2014)). In that case, the Court held the officers acted reasonably when, at the moment shots were fired, a reasonable police officer could have concluded the suspect “was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.”

The appellate court reversed the trial court’s denial of qualified immunity, holding that material undisputed facts demonstrate Billiot fired the fatal shot “fearing for his own safety and for that of the public if Tousis resumed his reckless flight.” Because the plaintiff failed to show any precedent warning Billiot that his actions amounted to excessive force, he was entitled to qualified immunity and dismissal of the lawsuit.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.
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