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Intentional Shooting that Fails to Hit Target: Not a Seizure under the 4th Amendment

In accordance with United States Supreme Court rulings, a physical seizure occurs when a person’s movement is stopped by force delivered by a “means intentionally applied. Thus, if an officer shoots at a person but misses, there can be no physical seizure. A show of authority seizure occurs when an officer shows authority and the person complies with that show of authority. If an officer were to shoot at someone, and in response to the shot, the person gave up, a show of authority seizure has occurred. If however, an officer fires a shot at a person, and the person, who was not hit by the shot, continues to flee, there has been no seizure.

A case from the United States Court of Appeal for the 7th Circuit provides a good example of a court’s application of these rules. In Cabell v. Rousseau, 2005 U.S. App. LEXIS 5396 (7th Cir. 2005), the court examined a lawsuit resulting from a shootout during a raid. Officers and agents on a multi-jurisdictional task force obtained a search warrant for the home of Juliush Cabell as well as an arrest warrant for his person. Pre-raid intelligence reports indicated that Cabell had a reputation for violence; his home was equipped with surveillance cameras; he had been previously arrested for assault on a police officer; and, officers had a photograph of Cabell, holding what officers believed was an assault rifle. The officers were all informed of this information at a pre-raid briefing.

Because of the potential for danger, a SWAT team was used to execute the warrant at the Cabell home. The team videotaped the raid. Officers knocked loudly at the door three times and shouted: “Search warrant, search warrant.” The officers breached the door with a battering ram within seven seconds. Officers continued yelling “search warrant.” As officers breached the door, Cabell fired a shot from inside the house. The officers continued yelling: “Police, search warrant.” Cabell responded by firing three more shots, two of which struck officers. The officers then retreated from the stairway while seven officers returned fire for six seconds by shooting 105 rounds in the direction of the muzzle flashes in the house. A short time later, unprompted by police, Cabell’s wife exited the house with a small child. Cabell exited after his wife. Cabell then told the officers that his son was still in the house. Officers entered the house and found the son. Cabell filed a lawsuit alleging excessive force by the police.

In examining the case, the court began by pointing out that Cabell was not struck by any of the bullets, thus he had not been subjected to a physical seizure since the bullets failed to stop his movement. The court then analyzed the case under the “show of authority” seizure analysis. The court cited numerous cases from around the country where courts have consistently held that if a person is not struck and does not otherwise comply with an officer’s show of authority, there is no seizure under the Fourth Amendment. In applying these cases to the facts here, the court concluded: “Here, Cabell was not struck by the officers’ bullets, and he did not submit to their show of authority until the firing had ceased—to the contrary, he responded to their shots by returning fire of his own. He therefore was not seized, and could not be the victim of excessive force.”

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