What the Ninth Circuit got wrong in George v. Morris (and why it still matters now)
The court's decision in the 2013 George v. Morris case failed to take into account scientific evidence from the Blair Reaction Time Study
On July 30, 2013 the United States Court of Appeals for the Ninth Circuit decided George v. Morris. The court’s decision in the case failed to take into account scientific evidence from the Blair Reaction Time Study, which showed that the officers were faced with extreme danger. To this day, the study is an essential documentation of the significant threat that a suspect with a gun in hand poses to cops even when the gun is not pointed at an officer.
At 0744 hours on March 6, 2008 Carol George placed a 911 emergency call to the California Highway Patrol (CHP). Mrs. George was hysterical, screaming and shrieking. She yelled loudly that her 64-year-old husband had a gun and repeatedly could be heard saying, “No, No, No.”
The phone suddenly went dead. The CHP transferred the matter immediately to a Santa Barbara Sheriff’s Office (SBSO) dispatcher. The dispatcher called the home and Mrs. George answered. Mrs. George said that her husband had a gun and was distraught because he was suffering from cancer.
Three SBSO deputies were dispatched and arrived twelve minutes after the initial 911 call. At the time of arrival, they knew that a case of domestic violence was in progress, Mr. George was armed, Mrs. George had suddenly hung up the phone, and Mr. George had a license to possess firearms in his residence.
Deputies Schmidt, Rogers, and Morris observed Mr. George standing at the rear of his home. He was holding on to a walker with one hand and a handgun in the other. Deputy Schmidt ordered George to drop the gun. Another deputy observed George manipulate the rear portion of the gun as though attempting to rack a round into the chamber. He also heard George refuse an order to drop the gun.
Deputy Rogers observed George with the gun in his left hand pointed at the ground. Suddenly he saw George turn toward him, raise the gun and point it directly at him. Deputy Rogers fired at George. Simultaneously, the other two deputies — fearing for the safety of Rogers — also fired their weapons at George. In total, nine shots were fired. George was killed and a semi-automatic handgun loaded with hollow point bullets was found next to his body.
A houseguest of the Georges stated that before she heard gunshots, she heard a deputy order George to drop his gun twice. Prior to being diagnosed with brain cancer, George told a friend that if he was ever diagnosed with cancer, he would get a gun, call the sheriff and have responding officers shoot him.
Four hours after the shooting, Mrs. George said that her husband became an angry man after his brain cancer operation and stated that he did not want to live with the affliction. He became so angry that the family locked up all the guns that were in the house. She said that on that particular morning, her husband found a gun in the trunk of the family car. She tried to yank the gun away from him but was not successful. She saw him insert a loaded magazine into the handgun.
Mrs. George sued the deputies who tried to protect her pursuant to 42 U.S.C. §1983 and claimed excessive use of force. She claimed that her husband was so impaired by his condition that he was not physically able to raise a handgun and point it at a deputy. However, only four hours after the shooting she said that her husband was ambulatory, angry, “pretty strong,” and able to resist her attempt to yank the handgun from his hand. She also stated that when she called 911, her husband told her that if she didn’t put the phone down he would use the gun.
The Federal District Court judge denied the deputies’ claim of qualified immunity and ruled that a genuine issue of material fact existed as to whether the deputies could reasonably have believed that the life of one of them was in jeopardy at the time they fired. The judge ordered that the case proceed to trial. The deputies filed an appeal with the Ninth Circuit Court of Appeals.
The Ninth Circuit in a 2-1 decision affirmed. The majority relied on Mrs. George’s assertion that her husband was not physically strong enough to raise a pistol and point it at a deputy. The majority ruling ignored all the cogent evidence to the contrary, including Mrs. George’s own words furnished four hours after the shooting. The majority ruled that in deciding the defense claim of qualified immunity, they were bound to adopt Mrs. George’s view of the facts and could not consider the testimony of the three deputies involved. The majority concluded that if the deputies shot a man who held a pistol in his hand pointed at the ground, a reasonable jury could find that excessive force was used.
Judge Stephen Trott dissented and sharply criticized his fellow judges on their misapplication of the qualified immunity doctrine. He pointed out that in Scott v. Harris, 550 U. S. 372 (2007), the Supreme Court ruled that when the lower court record reflects that a plaintiff’s version of material facts is not credible the court should reject that version in reaching a decision on qualified immunity.
Judge Trott found the statements of the three deputies entirely credible on the issue of whether Mr. George raised and pointed his pistol at Deputy Rogers. He also stated that “plaintiff’s evidence is demonstrably not competent either to resolve the ultimate issue of excessive force or the deputies’ credibility.”
He proclaimed, “What we are inexorably left with is a situation (1) where the deputies had incontrovertible cause to believe Mr. George posed ‘a threat of serious physical harm, either to the officer[s] or to others,’ (2) where he threatened them with a weapon, and (3) where he had been given a warning to drop the gun. Tennessee v. Garner, 471 U.S. at 11-12.” Judge Trott correctly concluded that “[n]o reasonable fact finder [i.e. jury] could conclude on this record that the disputed use of force was unreasonable or excessive.”
Judge Trott’s opinion was based on his correct conclusion that Mr. George raised and pointed a loaded handgun at one of the deputies. It was undisputed that Mr. George held a loaded semi-auto pistol at his side and refused to drop it when ordered to do so. The entire controversy in the case was based upon a dispute about whether or not George raised and pointed a loaded pistol at a deputy.
What was never raised or discussed by any of the involved judges or parties was whether George presented a significant threat of death or serious bodily harm to the deputies when he held a loaded pistol at his side and refused to drop it when ordered twice to do so. If he presented a significant threat of death or serious bodily harm at that moment – there was no material factual dispute – the shooting would be justified and the case could have dismissed on qualified immunity grounds. That brings us to the Blair Reaction Time Study.
The Blair Reaction Time Study involved 30 college students who played the role of “suspects” and 24 SWAT-trained police officers. Each officer was armed with a Glock training pistol that fired marking cartridges. They were told that they were responding to a person with a gun call. They had to progress through 10 rooms in an abandoned school. In each room, the officers were confronted with a “suspect” armed with a similar pistol at a distance of 10 feet.
In some cases the suspect’s gun was at his or her side pointed at the floor. The suspects were told to shoot the officers at any time after a command was given for them to drop the gun. Each officer was instructed to have their gun up and pointed at the suspect as soon as they entered each room. They were instructed to shoot first as soon as the suspect made a move to shoot them.
Test results revealed that the suspects who had their guns at their sides were able to raise themand fire at the officers in an average time of .36 of a second. In response, the average time for officers to react and shoot was .38 of a second. The officers had drawn and pointed weapons at the suspects. The officers knew they were likely to face a person with a gun. They were able to see a weapon in the suspect’s hand before the suspect made a threatening move. All of this notwithstanding, the suspects were able to raise the weapon from their side and fire a shot at the officers before the officers could fire back.
The Supreme Court in its Graham and Garner decisions has determined that an officer may use deadly force when he or she has probable cause — an “objectively reasonable belief” that a suspect poses a significant threat of death or serious bodily harm to the officer or others. The Blair Reaction Time Study demonstrates the significant threat to officers posed by a suspect with a gun in hand even when the gun is not pointed at an officer. Officers may have their guns pointed at the suspect but the extraordinary danger remains unabated.
Given the results of the study, a suspect with a gun in hand, even if not pointed directly at an officer, still poses a significant risk of death or serious bodily harm to the officer or others.
The Santa Barbara deputies would clearly have benefitted from expert witness affidavits that included an explanation of the Blair Reaction Time Study. The study scientifically proves that the three in George were faced with extreme danger as soon as Mr. George refused to drop the pistol when ordered to do so. In these times of increased attention on law enforcement’s use of deadly force, we would do well to remember what this study says about officer safety in incidents involving an armed subject.