LEADERSHIP
CHIEF COUNSEL ’ S CORNER
A Moving Target : Determining the Lawfulness of Deadly Force Applied Against Vehicles Used as Weapons
Richard A . Carothers General Counsel Carothers & Mitchell , LLC
Recent cases handed down by the Eleventh Circuit Court of Appeals address two important and related issues – shooting into moving vehicles and the application of qualified immunity in such situations . For the past several years , the Eleventh Circuit has consistently upheld an officer ’ s use of deadly force where a suspect “ used or threatened to use his car as a weapon to endanger officers or civilians immediately preceding the officer ’ s use of deadly force .” McCullough v . Antolini , 559 F . 3d 1201 , 1207 ( 11th Cir . 2009 ) ( upholding use of deadly force where suspect repeatedly refused to show his hands and drove his truck toward a deputy standing nearby ). On the other hand , deadly force is not authorized when a moving vehicle does not present an immediate threat of serious harm to the officer or others .
Although these rules seem simple enough , the Eleventh Circuit decided two cases in early September which demonstrate that judges can sharply disagree on the rule ’ s practical application . Underwood v . City of Bessemer , No . 19-13992 , 2021 WL 3923153 ( 11th Cir . Sept . 2 , 2021 ); Tillis on behalf of Wuenschel v . Brown , No .
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19-15098 , 2021 WL 4059492 ( 11th Cir . Sept . 7 , 2021 ).
Underwood v . City of Bessemer – Deadly Force Held Unconstitutional In Underwood , the operative facts were the following , with any disputes resolved in favor of the plaintiff ’ s version of the events :
Officers Christopher Asarisi and Daniel Partridge were dispatched to a domestic dispute after a neighbor called 911 and stated that she heard loud argument and gunshots . When Asarisi approached the scene , he saw a Nissan Maxima with its headlights on and two men arguing nearby . One of them , Marcus Underwood , walked back toward the Maxima .
Although Asarisi told Underwood not to get in the car , Underwood told the officer that the men were just clowning around , got into the driver ’ s seat , and slipped the car into gear . The second subject , Ray James , started walking away from the officers in the opposite direction . Officer Partridge began following James across the street .
At the same time , Underwood put the Maxima in drive and took his foot off the brake . This caused the car to begin rolling toward Officer Asarisi , who was standing beside his patrol vehicle . Asarisi again told Underwood to stop , but Underwood ’ s car continued coasting down the street . Underwood ’ s car came so close to Asarisi that he had to press his body up against his police vehicle to avoid contact . The Maxima passed him while still at a coasting speed .
Officer Partridge stepped from the side of the roadway into the middle of the street , directly in front of the Maxima . He , too , commanded Underwood to stop . At this point , Underwood and his car were about eight feet from Officer Partridge .
Asarisi was behind Underwood ’ s car and Partridge was in front of the car . With the Maxima still approaching at coasting speed , Partridge drew his gun and opened fire . Partridge continued firing as the Maxima made slight contact with him and then passed him . Asarisi also began shooting at Underwood .
The officers discharged 20 rounds , with five or six striking Underwood , who crashed into a neighbor ’ s house a short distance up the street . After