entitled to be .” 668 F . 3d at 1255 .
Although Terrell should have dispelled the officer-created danger theory in this circuit , it subtly resurfaced in Underwood . Recall that in that case , Officer Partridge stepped from relative safety on the roadside to directly face the approaching Maxima in the middle of the street . The court was careful not to say that Officer Partridge had a “ duty to retreat .” But the court did say that there was “ no risk ” that Officer Partridge could be crushed by the Maxima because there was space for the officer to move out of the way . The Underwood court ’ s treatment of this factor thus stands in stark contrast to Terrell and Tillis .
Determining the Threat of a Moving Vehicle : A “ Factbound Morass ” Given the potential dangers to innocent bystanders and passengers and the difficulty of stopping a vehicle by gunfire , among other concerns , some departments have opted to simply prohibit officers from firing at a moving vehicle in response to the threat posed by the vehicle itself . Indeed , the Tillis dissent relied upon a model policy to argue that the majority decision contradicts “ police best practices .” And yet , in spite of the tension between the competing opinions in Tillis and the partially adverse ruling in Underwood , all of the judges in both cases agree on the general rule that deadly force is justified when a moving vehicle is used as a weapon .
The challenge , of course , is determining when a moving vehicle constitutes a deadly threat . As Underwood and Tillis make clear , this is a fact-intensive inquiry that requires consideration of the vehicle ’ s speed , its position and distance from officers and other bystanders , the availability of avenues for an officer to escape harm , the feasibility of a warning , and the extent to which the driver has demonstrated an intent to weaponize the vehicle . These factors cannot be taken in isolation . Instead , as the Supreme Court has stated , “ we must still slosh our way through the factbound morass of ‘ reasonableness .’” Scott v . Harris , 550 U . S . 372 , 383 ( 2007 ).
Considering the judges ’ sharp disagreement in Tillis and the mixed result in Underwood , resolving the issue of reasonableness is often a daunting task -- even after months of studied deliberation . It is even more difficult for command staff to craft a policy that accounts for all of the relevant factors in anticipation of such incidents , and harder still for an officer on the scene who must weigh all of this in the heat of the moment . Just one more incredibly complex issue for law enforcement leadership to address .
Richard “ Dick ” Carothers is the General Counsel for the Georgia Association of Chiefs of Police . A graduate of Emory University School of Law , he has practiced local government law in Georgia for 40 years . He served as an Assistant City Attorney for the City of Atlanta , as County Attorney for Gwinnett County , and has been City Attorney for a number of cities over the years . He is a member of the Georgia and Ohio Bar Associations .
Dick also serves as insurance defense counsel for cities and counties including their officers and employees throughout Georgia in state and federal courts . His firm is currently defending cases representing numerous law enforcement officers and first responders . He is admitted to practice in all Georgia appellate courts , the Northern and Middle District federal courts , the 11th Circuit Court of Appeals , and in the United States Supreme Court . Dick has represented a Georgia city in a case and argued before the Supreme Court .
Dick is the Past President of the Local Government Section of the State Bar of Georgia and serves as a Special Assistant Attorney General for the Georgia Department of Transportation . His firm , Carothers & Mitchell , is located in Buford , Georgia .
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