Pretending to have a gun leads to being shot with a real gun
Appellate court concludes that the evidence plainly showed the officers subjectively believed the suspect had a gun
This article was featured in Lexipol's Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
Doxtator v. O’Brien, 2022 WL 2681409 (7th Cir. 2022)
Officers tried to stop Jonathon Tubby for running a red light. Tubby continued driving and then pulled into the parking lot of a nearby hotel. He drove through the parking lot before eventually pulling into a parking spot.
Tubby and Theresa Rodriguez, his aunt, gave false names, but the officers soon discovered their identities and discovered arrest warrants for Tubby and Rodriguez. The officers saw marijuana in the car, so the officers ordered Tubby and Rodriguez to get out of the car.
An officer handcuffed Tubby and placed him in a patrol car. Within minutes, Tubby slipped his hands under his legs, removed his seatbelt and moved his right hand under his shirt. An officer drove Tubby to jail for booking. In the jail sallyport, Tubby became noncompliant, refusing to get out of the patrol car and hiding one hand under his shirt.
When an officer attempted to pull Tubby’s foot out of the car, Tubby said, “Don’t!” and, “I’ll f***ing do it.” The officer slammed the door shut and told his backup officer, “I think he’s got a gun.” They called for more officers, took cover and requested a tactical shield.
Officers fired baton rounds to break out the rear window of the patrol car, followed by a blast of pepper spray. Tubby was eventually forced out of the car with pepper spray. He kept one hand under his shirt as if holding a gun. He stood on the trunk of the patrol car, still concealing his hand and refusing to surrender.
An officer fired a beanbag round into Tubby’s abdomen, causing him to fall off the vehicle. He rushed toward the exit in an apparent escape attempt. A police service dog bit Tubby in the buttocks. An officer heard a “pop” that he believed to be a gunshot coming from the gun he presumed Tubby was hiding and discharged his firearm eight times, hitting Tubby with five shots.
Tubby was unarmed. He died at the scene. His estate filed suit alleging excessive force. The trial court granted summary judgment to the officers and Tubby’s estate appealed.
The appellate court began by restating Supreme Court black-letter law on the use of deadly force:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. Tennessee v. Garner, 471 U.S. 1 (1985).
Cautioning that courts must avoid hindsight bias, the appellate court concluded that “Tubby intentionally led the officers to believe he was armed by keeping his hand concealed under his shirt in a manner that imitated the shape of a gun, and he threatened repeatedly to ‘do it’ as officers attempted to persuade him to surrender.” After escalating the situation with his apparent attempt to convince the officers that he had a gun and his threats to “do it,” and after officers used pepper spray and a bean bag, Tubby rushed toward officers.
Even though the test of reasonableness of use of force is objective – not the subjective belief of a particular officer – the court found it noteworthy that the evidence plainly showed the officers subjectively believed Tubby had a gun. Calling for a shield, diving behind cover, calling in an armored vehicle and SWAT officers “are not the actions of officers who believe a suspect to be unarmed.” Viewing the evidence objectively, the court held the officer who shot Tubby acted reasonably, given that Tubby intentionally led the officers to believe he was armed and ready to “do it.”
The 7th Circuit affirmed summary judgment in favor of the defendants. The officer who shot Tubby did not violate Tubby’s constitutional rights to be free from unreasonable seizures; qualified immunity shields the officer from liability. The court also held that, assuming the officer violated Tubby’s constitutional right, the right he is alleged to have violated was not “clearly established” at the time:
We hold that, given Tubby’s conduct, no reasonable jury could conclude that the officer’s use of force violated Tubby’s Fourth Amendment rights.”