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Use of Deadly Force Based on Perceived Threat

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Police officers sometimes subjectively perceive suspect action as a threat and react in accord with that threat. In many of these cases, the so-called “furtive” motion turns out to be simple movement and not a threat at all.

Sample v. Bailey, 337 F.Supp.2d 1012 (N.Dist. Ohio 2004) provides a good example of how courts view these cases when deciding whether an officer is entitled to qualified immunity based upon a perceived threat.

Sample, a felon had broken into a warehouse. When police responded to an alarm, Sample fled and hid in a cabinet. Officer Bailey and his partner began searching the building and located Samples hiding in the cabinet.

Officer Bailey shouted several times for Sample to get out of the cabinet and show his hands. Bailey’s partner reached into the cabinet and began to grab Sample, causing Sample to retreat further into the cabinet. Bailey reported that Samples reached into his jacket causing the officer to fear for his life. The officer opened fire and shot Samples seven times. Officer Bailey’s partner fled to the top of a stairway during the shooting.

Sample reported that at the time of the shooting he was actually reaching to the outside of the cabinet attempting to pull himself out of the cabinet as directed by the officer.

In considering a qualified immunity motion, the court must view the facts in the light most favorable to the person opposing the motion. Thus, in viewing this case, the court takes as true, that Samples was reaching for the outside of the cabinet and not into his jacket. In doing so, the court found that shooting someone who poses no threat (reaching for cabinet in full view) violated the constitution and this was clearly established. It should be noted that this only means that the officer was denied qualified immunity and may still prevail at trial.