Despite Video, Court of Appeals Can’t Reach Consensus on Police Use of Deadly Force
The use of deadly force by police officers in the line of duty has never been uncontroversial. But the police killing of George Floyd in Minneapolis on Memorial Day weekend has sparked an unprecedented national—even global—protest movement to re-examine the use of deadly force by police and the role of lawful police violence in perpetuating systemic American racism. Mr. Floyd’s killing was extraordinary in its stark inhumanity. But it galvanized millions because of its terrible familiarity to too many Americans who see police resort to deadly force in situations that often erupt from relatively minor infractions.
A Fourth Circuit panel recently captured the national mood when it declared, “This has to stop.” Estate of Jones v. City of Martinsburg (4th Cir. June 9, 2020). The Jones decision reversed a trial court’s ruling that had awarded qualified immunity to five Martinsburg, West Virginia, police officers who had killed a mentally ill homeless Black man by shooting him 22 times. The killing occurred shortly after one of the officers had stopped the man for walking in the road.
Like every American state, Maryland is deeply engaged in this difficult national conversation. State and federal laws have long recognized and accommodated the fact that officers must make split-second decisions on the use of force when running into unstable and often dangerous situations. The law does not limit them to using only the level and type of force that 20/20 hindsight later reveals as optimal. But society has also grown increasingly wary of rules and systems that seem to leave police officers unaccountable and even embolden some to brutalize citizens with impunity. Much of this sea-change in public opinion has been driven by the sudden ubiquity of cell phone, bodycam, and other video evidence—and social media platforms that facilitate “viral” dissemination—that brings these violent encounters into public view.
In this moment of intense national reflection, Maryland’s Court of Appeals recently handed down a 4-3 decision that captures the complexity of crafting and applying legal rules to properly regulate police conduct—even when an encounter is video recorded. Estate of Blair v. Austin, No. 35, September Term 2019 (June 2, 2020).
The Incident and Trial
In February 2015, Baltimore City Police Officer David Austin spotted a car travelling the wrong direction on Martin Luther King Blvd. before making a right turn through a red light. Officer Austin activated his lights and siren, followed the erratically driven car, and ordered the driver, Mr. Jeffrey Blair, to pull over. Slip op. at 1-2. Despite the order, Mr. Blair continued driving for another mile at low speeds, ran another red light, and eventually pulled over. After stopping, Mr. Blair got out of his car and advanced towards the officer, who had parked behind him and exited his vehicle. Id. at 2. Officer Austin testified that Mr. Blair had leaned towards the passenger seat immediately after pulling over and ignored the officer’s orders to stop and get back in his car. Instead, Mr. Blair “rapidly increased his pace towards Officer Austin.” Id.
Claiming that Mr. Blair reached first for the officer’s gun and then into his own waistband, Officer Austin fired four shots hitting Mr. Blair in the abdomen, scalp, and right hand. Fortunately, Mr. Blair, who was unarmed and had a history of mental illness, survived the shooting. (He died a few months later of unrelated causes) Id. at 2-3, 6.
Mr. Blair’s Estate sued Officer Austin (and other officers) for, among other things, assault and excessive force, a Fourth Amendment claim whose standard of proof is an objectively unreasonable use of force. The case was tried to a jury. A street surveillance camera, without audio, recorded the encounter and shooting and was played at trial. Id. at 4.[*]
Both sides presented expert testimony on the reasonableness of Officer Austin’s use of force when rushed by Mr. Blair. Id. at 4-6. The Estate’s expert witness, Dr. Tyrone Powers, a former Maryland State Trooper and FBI agent, testified that Officer Austin breached the standard of reasonable force by shooting Mr. Blair instead of limiting his use of force to defensive tactics or use of his baton or mace (Officer Austin was not carrying a taser). Id. at 4. Officer Austin’s expert testified that he acted reasonably and within police standards and policies. Id. at 5-6. The trial judge denied Officer Austin’s motion for judgment on the counts for civil assault and excessive force (while granting judgment on the other counts) and the jury found him liable for civil assault and excessive force. Officer Austin appealed.
The Appellate Decisions
In a divided panel decision, the Court of Special Appeals reversed the trial court. It held that the video evidence of the encounter showed—as a matter of law—that Officer Austin’s use of force was not unreasonable. In dissent, Judge Berger reasoned that an appellate court cannot make this factual determination from its own review of video evidence because the issue in the case was reasonableness, which is not the type of factual dispute that can be definitively resolved by a video (e.g., was the light red when the car crossed the stop line). He emphasized that, although jurors certainly could have found that Officer Austin acted reasonably, they were not precluded from finding that his conduct was unreasonable, especially after hearing Dr. Powers’s testimony. See id. at 9-10.
The Court of Appeals, in a 4-3 split decision (with Judge Watts concurring in the result and writing a separate concurrence), agreed with Judge Berger’s dissent and reversed the Court of Special Appeals. Writing for the majority Judge Hotten emphasized the impropriety of an appellate court usurping the jury’s fact-finding role and that the video of the incident was not so exculpatory that it left the jury with nothing to decide. See id. at 11-12. She distinguished federal appellate case law, which held that no jury question existed when video evidence showed that police officers shot a man who (1) charged police officers responding to a domestic incident and (2) was verbally threatening them while lunging at them with a knife. Id. at 13-14. Mr. Blair was unarmed and may not have said anything to Officer Austin. For the majority, the evidence did not conclusively establish that Mr. Blair had threatened Officer Austin with serious harm, which would allow him to use deadly force in response. Id. at 18-22.
In dissent, Judge Getty (joined by Judges Booth and Battaglia), decried the majority opinion as bearing “the hallmarks of armchair reflection from the peace of a judge’s chambers.” Dissent at 1. It also faulted the majority for focusing on irrelevant evidence while ignoring federal case law on the “objectively reasonable” standard for police use of deadly force in the line of duty. Noting a “fairly wide zone of protection [for officers] in close cases,” the dissent emphasized the plaintiff’s burden to show that the use of force was objectively unreasonable and unconstitutional and not merely that the officer made mistakes or could have done better. Id. at 10-11. It dismissed the majority’s emphasis on Officer Austin’s training and the less deadly alternatives that he had (mace, baton) to protect himself as immaterial to the question of whether it was reasonable for him to fire his gun when Mr. Blair charged at him. Id.
In the dissent’s view, the video evidence conclusively established that Mr. Austin, who was approximately six feet tall and weighed between 230 and 250 pounds, took “three to four slow steps towards Officer Austin’s patrol car,” before “charg[ing] directly” at Officer Austin,” who backpedaled away from him. Officer Austin did not draw his gun and fire until after he had retreated past the back end of his patrol car, as Mr. Blair continued charging at him to within an arm’s length. Id. at 20-21. Under these undisputed facts, corroborated by video evidence, the threat of serious harm was beyond dispute for the dissenting judges and entitled the officer to shoot until Mr. Blair stopped charging. See id. at 21-25. To the dissent, it was immaterial that Mr. Blair ultimately was found to be unarmed or that jurors may have preferred that the officer use mace or his baton. Because Officer Austin (1) reasonably perceived that he was in immediate danger of serious harm when Mr. Blair charged at him, (2) backpedaled away from Mr. Blair, (3) did not fire until Mr. Blair was within arm’s reach, and (4) stopped shooting when Mr. Blair stopped charging, the law protects the officer. See id.
It appears that all seven judges agree that this was a close case and that, if the jury had found that Officer Austin acted reasonably, it would have been affirmed. The tension in the decision revolves around competing views of the judiciary’s role in protecting police officers from liability when they use deadly force. Although substantial (non-binding) case law supports the dissent’s view that Officer Austin’s decision to shoot Mr. Blair cannot be deemed constitutionally unreasonable, the majority’s opinion reflects the seismic shift in American public opinion. Many courts, in Maryland and beyond, appear reluctant to continue providing a “fairly wide zone of protection [for officers] in close cases.” Such cases appear more likely to be decided by juries.
[*] Although police shootings are often racially charged, the Estate did not level any civil-rights claims in this case, and the Blair opinion does not disclose the race of the either Officer Austin or Mr. Blair. Because I have not seen the video or any other evidence not presented in the opinion, I do not know or presume to know either man’s ethnicity.