Use of Deadly Force In Response To Gun Pointed At Officer Ruled Not Excessive

March 21, 2018

The Seventh Circuit Court of Appeals recently held than an Indianapolis SWAT officer did not violate the Fourth Amendment in a fatal shooting case. In so doing, the court reiterated two key principles for judging such cases and reversed a lower court for overlooking those principles. First, a fact cannot be “disputed” merely on a plaintiff’s say-so. Rather, the plaintiff must show a fact is disputed based on evidence in the record. Second, when someone points a gun at a police officer, the officer does not violate the Constitution by responding with deadly force even if the officer could have chosen less lethal alternatives.

Sanzon v. Gray, No. 17-2103 (7th Cir. 3/8/18) arose from a scenario that began when Keith Koster’s friend asked emergency personnel to check on Koster, who was suffering serious health problems. But when police and firefighters went to Koster’s apartment, they saw Koster holding a gun and heard Koster threaten to kill anyone who entered. The first responders left, and the SWAT team arrived. Negotiations began, but soon deteriorated. Officers saw Koster sitting up in bed, holding a gun and swallowing numerous pills. Koster threatened to fire a warning shot. Koster then pointed the gun at the negotiator. The negotiator ducked, but at that time SWAT officer Gray shot and killed Koster.

Koster’s estate sued, and the district court granted summary judgment to all the officers except Gray, reasoning that he used excessive force because he could have use less-deadly means, such as ducking behind the SWAT shields or allowing the on-scene officers with a beanbag gun to fire first. The district court also denied Gray’s qualified immunity claim, so he appealed.

On appeal, the Estate first insisted that whether Koster in fact pointed the gun at the officers was a disputed fact based on its reading of the district court’s opinion and alleged discrepancies in the officers’ testimony. It contended that this factual dispute blocked summary judgment and deprived the appellate court of jurisdiction to hear the appeal. But the Seventh Circuit looked instead to the summary judgment briefing, where the Estate did not dispute the fact that Koster pointed the gun at the officers based on evidence in the record and held that the Estate cannot dispute that fact “for the first time on appeal.”

The Estate’s numerous other arguments boiled down to variants on the district court’s theme that the officer could have responded in other ways besides firing the fatal shot and allegedly escalated the situation before Koster pointed the gun.  The Seventh Circuit responded that none of that mattered, even if true, because time and again the Seventh Circuit had held that when a person points a gun at a police officer, the officers do not violate the Fourth Amendment if they respond with deadly force. Thus, the Seventh Circuit held that no constitutional violation occurred, reversed the lower court, and entered judgment for the officer.

Sanzone v. Gray

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