Carl Storm, a police officer in Bourbon, Missouri, was by himself on routine patrol during daylight hours on March 5, 2014, when he observed Gary Wenzel drive by him with improper tags on his vehicle.
Storm recognized Wenzel and recalled he had responded to a domestic dispute involving the suspect. Storm had also been previously informed by Wenzel’s brother that Wenzel was dangerous, and Storm should be careful when dealing with him.
Storm had likewise previously been informed that Wenzel had engaged in physical altercations with other officers and fled from a prior attempt to pull him over for improper tags. Storm was also aware that Wenzel was currently under investigation for methamphetamine distribution. Storm was told by Wenzel’s nephew on the same day that this event occurred that Wenzel had told him he was not going back to jail.
The incident
Storm activated his lights and siren in an attempt to stop Wenzel. Wenzel refused to pull over and sped through a stop sign. During a pursuit lasting 10 to 11 minutes, Wenzel drove recklessly, frequently in the wrong lane, including when cresting hills and rounding turns.
The police dispatcher notified Storm that Wenzel should be considered “J13,” meaning he is likely to be aggressive, known to be violent with weapons.
At the conclusion of the pursuit, Wenzel drove his vehicle into a ditch and stopped. Storm stopped a few car lengths behind.
Without being ordered to do so, Wenzel left his vehicle and began quickly approaching Storm. Storm exited his cruiser, stood behind the driver’s side door, drew his firearm and shouted for Wenzel to stop and show his hands. Storm did not see Wenzel with any weapons, and saw that his hands were at his sides with his palms facing backward.
The cruiser dash-cam video shows Wenzel quickly exiting his vehicle and walking aggressively toward Storm’s vehicle. Wenzel appears to be angry, with his arms swinging as he walked. The video shows that Wenzel did not comply or even react to Storm’s commands. Wenzel continued toward Storm, coming within a few steps of his location. Storm fired three shots and Wenzel was killed. Three seconds elapsed from the time Wenzel exited his car until he was shot. Wenzel was not armed at the time of the shooting.
Eighth circuit ruling in excessive force case
Wenzel’s survivors sued Storm in federal court for using excessive force. The federal court rejected Storm’s claim of qualified immunity and set the case for trial. The lower court’s ruling suggests that Storm used excessive force if he could see that Wenzel was unarmed as he approached.
Storm filed an appeal with the Federal Court of Appeals for the Eighth Circuit, which reversed the lower court and ruled in favor of Officer Storm. [1] The Eighth Circuit noted that in cases of this nature, “The use of deadly force is reasonable where an officer has probable cause (not absolute certainty) to believe that a suspect poses a threat of serious physical harm to the officer or others.” [2] Other findings of interest to law enforcement include:
- The court observed that its review of this kind of case must be “based on the perspective of a reasonable officer on the scene [as to] whether the officers’ actions are objectively reasonable.” [3]
- The court stated that Wenzel was fleeing and drove recklessly, creating a hazard for other motorists, and noted that Storm was aware of Wenzel’s past aggressiveness and violence towards law enforcement officers.
- The court further observed that Wenzel’s manner of exiting his vehicle and his aggressive approach toward Storm while appearing angry made it reasonable for Storm to believe that Wenzel “posed an immediate threat of serious physical harm to him, notwithstanding the fact that Storm could see that Wenzel’s hands were empty and the later discovered fact that Wenzel was unarmed.”
- The court rejected the Plaintiff’s contention that Storm should have used his pepper spray or baton before resorting to using his firearm. The court explained, “A reasonable officer on the scene would have viewed Wenzel’s indisputably aggressive approach as a precursor to a physical altercation. Storm was required to make a split-second decision in unpredictable and dangerous circumstances, and he was not constitutionally required to attempt to re-holster his firearm, grab his baton or pepper spray canister, and do battle with the fast-approaching, known to be confrontational Wenzel.”
Conclusion
This case represents another clear, well-reasoned judicial opinion that is favorable to law enforcement officers within the jurisdiction of the Eighth Circuit. [4] It also stands as persuasive authority for officers facing similar circumstances in other federal circuits as well.
Judges in the Eighth Circuit appear to understand the dangerous life-threatening dynamics involved in split-second law enforcement confrontations with aggressive suspects. Persons judging these matters must remember that there will always be at least one firearm present (the officer’s) in these circumstances and that a suspect can be unarmed but still dangerous. If a suspect gains control of an officer’s weapon during a struggle, the officer is likely to be murdered. This case and others like it should be brought to the attention of police leaders and local prosecutors before a similar incident occurs.
References
1. Wenzel v. City of Bourbon, Missouri; Storm, (No. 17-2028) (8th Cir. 2018).
2. Citing, Tennessee v. Garner, 471 U.S. 1, 11 (1985).
3. Citing, Graham v. Connor, 490 U.S. 386, 397 (1989).
4. The Eighth Circuit covers the States of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
