CSU shooting: Were officer's actions 'objectively reasonable'?

tchitwood@ledger-enquirer.comApril 2, 2014 

Columbus has been over this issue before -- just three years ago.

That's when a Columbus police officer pursuing a bank robber fatally shot another man who got into a pickup truck the robber stole trying to get away. The officer assumed the second man was an accomplice. Investigators later determined he was not.

But the city police officer did not know that at the time. All he knew was the witness ran to the truck the robber was taking and got into the passenger's seat before the robber tried to back over the officer, who opened fire, killing both men.

A grand jury cleared the officer of any wrongdoing in May 2013.

Though the public may perceive the law enforcement officers who work for a college differently than those employed by a municipality, they get the same training to be certified by the Georgia Peace Officers Standards and Training Council, and they enjoy the same legal protections while acting in their official capacity.

So the actions of the Columbus State University police involved in Sunday's fatal on-campus shooting of 20-year-old Zikarious Jaquan Flint will be gauged by the same standards as those applied to Columbus Officer Vincent Lockhart's fatal Sept. 6, 2011, shooting of Fort Benning fire inspector Tony Carr, who got into his government work truck as bank robber Alrahiem Tolbert stole it.

Around lunchtime that day, Carr brought the truck from Fort Benning to his Gardenia Drive home and left it right outside.

About that same time, Lockhart pulled into the parking lot of the MEA Credit Union at Macon and Rigdon Roads and saw Tolbert walking out with a gun.

Tolbert ran toward Gardenia Drive, just a block south, with Lockhart in hot pursuit. Lockhart yelled for him to stop. As they came into Carr's yard, Tolbert got into the driver's side of the government truck, and Carr ran from his home to get into the passenger's side.

Acting on what he saw, Lockhart assumed both were involved in the robbery, and fired on the truck as Tolbert tried to back over him. He kept shooting as Tolbert sped west on Gardenia Drive, fatally wounding Carr, who fell from the pickup, and hitting Tolbert in the head before he crashed the truck into a utility pole at Briarwood Avenue.

Those were the circumstances of Carr's death. According to CSU police, this is what happened to Flint:

Officers at 2:35 p.m. Sunday responded to reports of a man with a gun at the Courtyard 1 apartments on the main campus off University Avenue.

Arriving within minutes, CSU officers saw Flint, who ran from them, so they gave chase, ordering him to stop and drop the gun. They pursued Flint to where he rounded the corner of a building, turned "threateningly" to face them, and raised one arm.

CSU Sgt. Ben Scott fired, striking Flint twice from behind. Flint fell with the gun beside him, police said.

Supreme Court precedent

The circumstances differ, between Carr's death and Flint's, but Scott's actions will be judged according to the same court precedents.

The Supreme Court precedent that currently applies to complaints of excessive police force is yet another story -- the story of Dethorne Graham, and the 1989 U.S. Supreme Court case Graham v. Connor.

That story began Nov. 12, 1984, in Charlotte, N.C., where Graham, a diabetic, felt an insulin reaction coming on and had a friend named William Berry drive him to the store for some orange juice.

But the store had a long line at the checkout, so Graham walked in, saw the line, walked right back out and got back into Berry's car, and they left.

To a police officer observing this, Graham's conduct appeared suspicious. So he followed Berry and pulled him over.

While waiting to hear whether a crime had occurred back at the store, the officer detained both men. Because of his diabetes, Graham became disoriented, got out of Berry's car, twice ran around it, then sat down and passed out.

Other officers arrived, rolled Graham over on the sidewalk and cuffed his hands behind his back, ignoring Berry as he told them of Graham's condition. Said one officer: "I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the motherf----r but drunk."

They picked Graham up and put him face-down on the hood of Berry's car. When Graham came to and told them to check his wallet for a diabetic notification, he was told to "shut up" as they shoved his face against the car hood. Then they grabbed him and threw him headfirst into the back seat of a patrol car. Another friend of Graham's brought some orange juice, but officers wouldn't let Graham have it.

By the time Charlotte police learned Graham had committed no crime, he had a broken foot, a bruised forehead, an injured shoulder and cuts on his wrists. He sued, prompting the Supreme Court precedent by which cases alleging the excessive use of police force are judged today.

The Supreme Court said such cases must be decided on the basis of the Fourth Amendment's prohibition against unreasonable search and seizure.

Determining what is reasonable and what is not requires "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."

As in the case of Lockhart's shooting Carr, the law enforcement officer's perception at the time matters more than what authorities discover later: "The 'reasonableness' of a particular use of force must be judged from the perspective of reasonable officer on the scene, rather than the 20/20 vision of hindsight."

Added the justices: "The calculus of reasonableness must embody allowance for the fact that police officers often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the use of force that is necessary in a particular situation."

'Objectively reasonable officer'

J. Dale Mann, retired director of the Georgia Public Safety Training Center in Forsyth, said Graham's case remains the controlling precedent: "That has not really changed."

Mann, who retired in October 2011, still works in law enforcement training. He said such cases are judged by what any "objectively reasonable officer" would have done in the same circumstances.

"That's the real test: Would any officer placed in the same position have made the same decision? … That's where the Supreme Court went in '89 when they wrote Graham-Connor. They said, 'Listen, this has to be objectively reasonable. It has to be close to what any other officer would have done in the same situation.'"

Wrote the Supreme Court: "The question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."

The federal 11th Circuit Court of Appeals in 1994 considered such factors in the Decatur County, Ga., case of Larry Gene Harrell, who on Oct. 27, 1990, resisted arrest when charged with driving drunk.

Harrell started wrestling with Deputy Bob Morris, and they rolled into a ditch where Harrell took Morris' flashlight and beat him with it.

Harrell tried to take Morris' gun, kicked Morris and threatened to kill him, then went back to his car, where Morris, shouting for Harrell to halt, saw him reach under the seat as if to retrieve a weapon.

Morris fired five shots. Three hit Harrell and killed him, but it turned out Harrell had no weapon. His widow filed suit.

Ruling in Morris' favor, the 11th Circuit cited the 1985 Supreme Court case Tennessee v. Garner. In that case the court decided allowing law enforcement officers to shoot unarmed suspects just because they're fleeing is "constitutionally unreasonable," adding, "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."

But Harrell didn't just run away; he put up a fight. Morris' perceiving Harrell as an immediate threat was not unreasonable under the circumstances, said the court.

Referring to Tennessee v. Garner, the appeals court wrote that "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 or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."

The 11th Circuit decided Morris could not be held liable in Harrell's death because he, like other law enforcement officers, had the protection of "qualified immunity."

That means individual law enforcement officers cannot be held liable for their conduct on duty as long as they violate no clearly established law or constitutional right.

The principle is intended to let officers do their work without the constant fear of being sued.

Wrote the 11th Circuit in a 2002 case: "The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law."

An 11th Circuit case originating in Columbus illustrates that:

On April 5, 2005, Columbus police went to Lester Zachary's Gould Street home after the war veteran called a VA hospital to say he had a gun and had dreamed of killing children and himself. Zachary got into a standoff with the officers, threatening to shoot them.

Learning a 14-year-old was inside Zachary's home, police decided to immobilize him, shooting him twice with a bean-bag gun as he stood on his front porch. Then they handcuffed him and took him to The Medical Center, where he died from internal bleeding two days later.

His widow sued. A district court ruled in her favor, denying the officers qualified immunity. The 11th Circuit overruled it.

The appeals court said the officers would have no immunity were it objectively obvious that "no reasonably competent officer" would have used the same level of force, but, "if officers of reasonable competence could disagree on this issue, immunity should be recognized." It granted the officers immunity.

Referring again to Graham v. Connor, Mann stressed that courts give law enforcement officers the benefit of the doubt unless their conduct's clearly abusive:

"The court's going to defer to them unless there's some overwhelming evidence that these officers either: One, are not telling the truth, or two, exceeded their authority."

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