Appeals Court Says No Rights Were Violated When A Cop Shot At A 'Non-Threatening' Dog But Hit A Kid Instead

from the ongoing-Fifery-of-American-policing dept

The Eleventh Circuit Court of Appeals has reached a conclusion that defies easy summation. But here's an attempt: it is not well-established that cops shouldn't shoot children they've ordered to lie prone on the ground while trying to shoot a dog that posed no threat to officers.

In reversing the lower court's denial of qualified immunity to Officer Michael Vickers, the Appeals Court has opened the door to preventing the stupidest, most-inept cops from being held responsible for their careless blunders.

In this case, Vickers and other officers were pursuing a suspect through a neighborhood. This pursuit inserted them into the backyard of Amy Corbitt, where Corbitt's 10-year-old child (known only as SDC in the opinion) and five other children (two of them under the age of three) were playing. The officers entered the yard and demanded everyone present to get down on the ground, including the children. They handcuffed the only adult in the backyard (Damion Stewart) and kept the children on the ground. The officers had the scene secured as they outnumbered the prone children who were still laying on the ground with guns pointing at them.

The surprise entrance of the family dog turned this scene from merely-horrific to possibly deadly. From the decision [PDF]:

Then, “while the children were lying on the ground obeying [Vickers’s] orders . . . without necessity or any immediate threat or cause, [Vickers] discharged his firearm at the family pet named ‘Bruce’ twice.” The first shot missed, and Bruce (a dog) temporarily retreated under Corbitt’s home. No other efforts were made to restrain or subdue the dog, and no one appeared threatened by him.

Officer Vickers, presumably still shaken by the sound of his own gunfire, decided to take another shot at the dog when it reappeared and tried to approach all the people it knew, who were lying on the ground all over the backyard. There's no indication the dog even turned in Officer Vickers' direction.

Eight or ten seconds after Vickers fired the first shot, the dog reappeared and was “approaching his owners,” when Vickers fired a second shot at the dog. This shot also missed the dog, but the bullet struck SDC in the back of his right knee. At the time of the shot, SDC was “readily viewable” and resting “approximately eighteen inches from . . . Vickers, lying on the ground, face down, pursuant to the orders of [Vickers].”

Maybe this attempt to secure the scene was necessary because other officers were still trying to detain the criminal suspect…

Barnett (the fleeing suspect) “was visibly unarmed and readily compliant” with officers.

Officer Vickers claimed he was entitled to qualified immunity for shooting at a non-threatening dog and shattering a child's knee instead. In support of this, he pointed to an unpublished decision by the Eleventh Circuit saying no one has the right to be free of "accidental applications of force." The lower court disagreed. The Eleventh Circuit apparently feels there's no case law precisely on point to prevent it from rewarding Officer Vickers for his courageous stupidity in the face of non-danger.

Its explanation of this conclusion sounds like it's going the other way the whole time… right up until its conclusory sentence.

As noted above, at the time Vickers fired at the dog, SDC just happened to be playing in his own yard when, for reasons beyond his control, his yard became the scene of an arrest operation. Although we have held that SDC was already seized at the time of the shot, SDC is best described as an innocent bystander. And although the commands of the officers that SDC and the other children lie face down on the ground were actions directed at SDC and the other children, Corbitt does not claim that those actions violated SDC’s Fourth Amendment rights; rather, she claims that the action of Vickers firing at the dog and accidentally hitting SDC violated the Fourth Amendment. We hold that Vickers’s action of intentionally firing at the dog and unintentionally shooting SDC did not violate any clearly established Fourth Amendment rights.

Or, more concisely: being careless with your deployment of force doesn't violate the Constitution.

Indeed, we are unable to identify any settled Fourth Amendment principle making it obviously clear that volitional conduct which is not intended to harm an already-seized person gives rise to a Fourth Amendment violation.

There will be no holding by the court to encourage more careful deployments of force in the future.

This is not a case that so obviously violates the Fourth Amendment that prior case law is unnecessary to hold Vickers individually liable for his conduct. To find otherwise would require us to conclude that no reasonable officer would have fired his gun at the dog under the circumstances. This we are unable to do.

What do you mean by "we," asks Judge Wilson's dissent:

The majority accurately points out that qualified immunity protects “all but the plainly incompetent.” Maj. Op. at 10 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Because no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers. Therefore, I dissent.

As the dissent points out, there was nothing "reasonable" about Officer Vickers' actions, especially when it's apparent from the allegations no one BUT Vickers felt compelled to shoot at the non-threatening dog.

Consider the present facts and circumstances: officers arrived at a home and found the subject of their search. At gunpoint, the officers ordered the suspect and all persons in the area—including six children—to the ground. Everyone complied. A nonthreatening family pet was present on the scene; there is nothing to suggest that this pet acted with hostility or threatened the safety of anyone— including the officers. With all the children and the suspect still lying on the ground pursuant to the officers’ commands, Officer Vickers shot at the family pet. He missed. He waited. He shot again. He missed again, instead striking a child who had been—at all times—lying within arm’s reach of the officer. This conduct—discharging a lethal weapon at a nonthreatening pet that was surrounded by children —is plainly unreasonable.

If the question is "reasonableness" of the actions taken, Officer Vickers fails the test every step of the way.

No reasonable officer would engage in such recklessness and no reasonable officer would think such recklessness was lawful.

Unfortunately, the majority felt the impact of denying qualified immunity would be too much for the occupation of law enforcement to bear. If officers are forced to consider the implications of their violent actions, they might… I don't know… commit fewer acts of violence. Spun into blueness, this would be misconstrued to mean second-guessing themselves in life or death situations. That's extrapolation from facts not in evidence. Nothing here was a threat. But Officer Vickers fired until he hit something anyway. That it happened to be a child rather than the family pet is horrifying, but the truth is, Vickers never should have opened fire at all. But he's free to make the same harmful mistakes again and again, as are all his blue brethren in the 11th Circuit.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 11th circuit, amy corbitt, dog, kids, michael vickers, police, qualified immunity, shooting