LEADERSHIP
of the Pontiac . All of the shots were fired in fewer than 13 seconds . The passengers were injured by the gunfire , and Redwine died from gunshot wounds .
In an opinion authored by Chief Judge William Pryor , the Tillis majority ruled that Officer Brown ’ s use of deadly force was lawful : “ When an officer is on foot and standing in close proximity to a suspect ’ s moving vehicle , he need not be directly in the vehicle ’ s path to fear reasonably for his life . It is ‘ obvious ,’ in this circumstance , that the suspect could quickly turn his steering wheel and swerve toward the officer .” In a blistering dissent , Judge Jill Pryor concluded not only that Officer Brown ’ s use of force was unconstitutional , but that it violated clearly established law . She pointed out that in prior cases , deadly force was authorized only where a driver “ transforms his car into a weapon .” And in her view , for a vehicle to be considered a dangerous weapon , evidence that a car was driven directly at an officer is “ crucial .” If indeed that factor is crucial , it is not dispositive . After all , in Underwood , the suspect was driving directly at Officer Partridge and the shooting was deemed unlawful because the vehicle was moving slowly and the officer had some avenue of escape .
In any event , that factor was not present in Tillis , as Officer Brown was not in the direct path of the Pontiac
12 FALL 2021 when it reversed past him . Even so , the majority decided that Officer Brown had reason to believe that he was in immediate danger of being struck by the Pontiac because it was “ obvious ” that Redwine could have quickly turned his steering wheel and accelerated toward Brown . This fear was certainly warranted , given Redwine ’ s reckless behavior leading up to this point .
The dissent would have none of this . Citing plaintiffs ’ accident reconstruction expert , Judge Jill Pryor stated : “ Based on the position of the Pontiac as it drove past Brown , it would have had to move sideways to strike him , something cars cannot do .”
Here , it is well to remember that all of the judges ’ comments and criticisms were made with the benefit of more than a full year of careful deliberation aided by detailed briefing and oral argument . And only with the support of expert testimony was the dissent able to conclude that Officer Brown was not truly in danger . In contrast , Officer Brown had only a moment to evaluate the threat posed by the Pontiac . With that in mind , the majority emphasized that the only perspective which matters is that of a reasonable officer on the scene . In the split second that Officer Brown had to react , the majority observed , “ he certainly did not have time to calculate angles and trajectories to determine whether he was a few feet outside of harm ’ s way .”
Duty to Retreat ? When an officer shoots a moving vehicle due to a perceived deadly threat , many plaintiffs ( and even some judges ) will criticize the officer for putting himself in harm ’ s way or for deciding to shoot instead of retreating to safety . The Eleventh Circuit has held , however , that “ the law does not create a duty for a law enforcement officer to retreat or abandon his efforts to effect an arrest simply because a fleeing felon is noncompliant .” Terrell v . Smith , 668 F . 3d at 1252 .
Without addressing Terrell , the Tillis dissent criticized Officer Brown for approaching the Pontiac after it passed him and for firing the second set of shots at the front of the vehicle . After all , the dissent reasoned , if the driver of the Pontiac was so dangerous , what officer in his right mind would put himself directly in front of the vehicle ? The Tillis majority dispensed with this notion that Officer Brown manufactured the danger : “ Respectfully , what was Officer Brown supposed to do instead ? As a police officer , he had a duty to protect his community , even at the risk of his own life . And that duty required him to arrest the driver of the Pontiac who had led officers on a high-speed chase .” The Tillis majority ’ s approach to this question mirrored that of the panel in Terrell , which refused to fault an officer who was “ attempting to make an arrest that he had the legal right to make while standing in a position where he was legally