Fifth Circuit reverses lower court grant of qualified immunity to Texas police officer
The appellate court was critical of the officer’s decision to enter a suspect’s vehicle, which resulted in the shooting death of the driver and a second officer being struck twice by the vehicle
On February 1, 2017, Tavis Crane was driving in Arlington, Texas with three passengers, Dwight Jefferson, Valencia Johnson (Crane’s pregnant girlfriend) and Crane’s two-year-old daughter. Officer Bowden pulled Crane over after observing what she thought might be a crack pipe being thrown from the passenger side of the vehicle. Bowden asked Crane for his license and proof of insurance. Crane had no driver’s license.
Bowden determined that the object thrown from the car was a candy wrapper but did not permit Crane to leave. Bowden instead ran a warrant check on Crane and learned that he had several misdemeanor (possibly traffic) warrants against him and a possible unconfirmed felony probation warrant.
Bowden called for backup and began writing Crane a citation for driving without a license. Officers Johnson and Roper arrived, and the three officers approached Crane’s vehicle at 11:50 p.m. Bowden went to Crane’s window; Roper stood to her rear next to the driver-side rear door and Johnson went to the other side of the vehicle.
Bowden asked Crane to step out because he had outstanding warrants, but Crane refused. Bowden told him that his continued refusal would result in additional charges, but Crane insisted that he had no warrants. Bowden told him that five tickets had been confirmed but Crane reiterated his refusal to exit.  Officer Johnson ordered Jefferson to turn off the car and give him the key, but Crane rebuffed the effort.
Officer Roper opened the rear driver-side door, drew his pistol and told everyone to put their hands up. Roper entered the vehicle into the back seat, pointed his pistol at Crane and placed his arm around Crane’s neck.  All three officers ordered Crane to turn the car off. Instead, the engine revved, and the car shook while the brake lights sporadically turned on and off.  Bowden reached into the backseat and told Roper three times to exit the vehicle, but he remained inside.
The incident’s next few seconds are disputed by the parties. Crane’s passengers allege that Crane moved his hand to turn the car off in compliance with Roper’s command, but Roper shot him. They claim that the car lurched backward after Crane was shot and struck Officer Bowden who was standing behind it. The car next moved forward and ran over Bowden before speeding off.
Roper offers a different version. He alleges that while the rear door remained open, he and Crane struggled. During the struggle, Crane shifted the car into gear, causing it to move backward and strike Bowden. Roper claims that it was only after the car struck Bowden and after he warned Crane that he would shoot him if he did not stop that he shot Crane twice. He further claimed that when Crane still did not stop, he fired two more shots at him.
After Roper shot Crane, the car moved forward down the road. Roper removed the keys from the ignition and stopped the vehicle. An autopsy disclosed that Crane received four bullet wounds and died from wounds to his abdomen.
Crane’s estate sued Roper and the City of Arlington pursuant to 42 U.S.C. § 1983 (federal civil rights statute) alleging a Fourth Amendment excessive force violation. The federal district court granted Roper’s assertion of qualified immunity and dismissed the suit against him and the city. The estate filed an appeal with the Fifth Circuit Court of Appeals.
The decision of the Fifth Circuit 
The Fifth Circuit reversed the decision of the lower court, rejected Roper’s qualified immunity claim, and reinstated the suit against him and the city.
The court initially observed that when a defendant officer asserts a defense of qualified immunity, all disputed material facts must be viewed in the light most favorable to the plaintiff. The court noted an exception to this rule and explained that when there is video evidence of an incident, “courts are not bound to accept the [ plaintiff’s] version of the facts if … contradicted by the video.  But when video evidence is ambiguous or incomplete,”  the video evidence exception is inapplicable.
In the instant case, there was video of the incident from Bowden’s patrol car, but it did not show what happened inside Crane’s vehicle. The Fifth Circuit was thus bound by law to accept the estate’s version of material facts. Reviewing the matter under the estate’s fact version, the court conducted a two-pronged inquiry. First, it had to decide whether Roper used excessive force in violation of the Fourth Amendment and second whether his conduct violated clearly established law.
Accordingly, the court observed that Roper shot Crane while the car was still in park and before the car began to move. The court stated, “Roper was not at imminent risk of being expelled from a parked car” and “the vehicle did not in this sense pose a serious threat.” Put differently, Roper did not face a significant threat of serious injury or death when he shot Crane.
The court next rejected Roper’s claim that the other officers were endangered by Crane’s actions. The court explained, “at the time Roper shot Crane, Bowden and Officer Johnson were standing to the side of Crane’s car, not behind it, unlikely to be hit by the car.” The court concluded by stating, “Whether Roper’s use of deadly force was reasonable may well turn on whether the car was in park or moving at the moment Roper shot Crane. But that is a question for the jury.” 
The court stated that the law in the Fifth Circuit requires it to consider, “the speed with which an officer resorts to force where officers deliberately, and rapidly, eschew lesser responses when such means are plainly available and obviously recommended by the situation.” The court observed that Officer Bowden was trying to negotiate with Crane to exit when Roper jumped into the back seat containing a pregnant woman and two-year-old child, drew his firearm and shot Crane less than a minute later.
Bowden repeatedly urged Roper to get out of the vehicle before he shot Crane, “reflecting the sound view that they could not use deadly force to keep Crane from fleeing.” The court also determined that on the facts alleged by the estate, Roper’s conduct was excessive and violated clearly established Fourth Amendment law.
- A grant or rejection of qualified immunity by a lower court federal judge is subject to an immediate appeal by the losing party to a federal appellate court.
- At the appellate level, in the absence of clear and convincing evidence to the contrary (e.g., video evidence), the federal circuit court must accept the plaintiff’s version of material facts in deciding the qualified immunity issue.
- If the appellate court rejects the officer’s qualified immunity defense, the officer can still present his/her version of material facts to the jury during trial and if accepted as true, prevail with a favorable verdict.
- In the instant matter, the court was highly critical of the officer’s decision to enter the backseat of a recalcitrant offender’s vehicle, draw his weapon and engage him in a struggle. On 11/1/22, a similar case involving a Euclid Ohio officer resulted in a jury verdict against the officer in the sum of $4.4 million dollars. 
- Here the offender only had confirmed misdemeanor warrants and was not exhibiting behavior that would justify entry to the vehicle and drawing a firearm.
- Even if the need for an immediate arrest of Crane was greater, the decision of an officer to enter a vehicle under the control of an offender is a bad tactical move. The likelihood of a seriously negative outcome for all the involved parties is significant.
1. Bowden continued to converse with Crane but was not successful in changing his mind.
2. Roper disputes that he placed his arm around Crane’s neck and claims that he grabbed the hood of Crane’s sweatshirt.
3. Whether this was intentional or not is disputed by the parties.
4. Crane v. City of Arlington, Texas; Craig Roper, (No. 21-10644) (5th Cir. 2022).
5. See, Scott v. Harris, 550 U.S. 372, 381 (2007).
6. Id, at 378.
7. By law, the function of the judiciary is to decide questions of law, and the function of a jury is to decide questions of fact. This explains why an appellate court, in deciding whether an officer is entitled to qualified immunity, is generally bound to accept the plaintiff’s view of disputed material facts. If the qualified immunity defense is disallowed at the appellate level, the defendant officer will be able to present his version of disputed facts to the jury if the case goes to trial. The jury must decide which version of disputed material facts it will accept.
8. See story by Cory Shaffer, “Jury rules Ohio Officer must pay $4.4M to family of man he killed,” Cleveland.com.