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Shooting At Non-Threatening Fleeing Vehicle May Violate 4th Amendment

Jack Ryan

In Flores v. City of Palacios and Officer Kalina, 381 F.3d 391 (5th Cir. 2004), the United States Court of Appeal for the 5th Circuit considered a case where an officer shot at a vehicle that refused to stop upon his command.

Officer Kalina was on patrol when he shined his spotlight toward a vehicle that was parked on the wrong side of the road. Kalina observed subjects flee from this area. It should be noted that alcoholic beverages were later found in the area, however there was no indications that Erika Flores, a minor and the person suing the officer in this case, had anything to do with the alcoholic beverages.

Officer Kalina reported that he ran toward Erika Flores’s car as she started to drive off and ordered her to stop. Erika reported that she had her car radio turned up and never heard Officer Kalina. When Erika failed to stop Officer Kalina fired a shot at the vehicle. The bullet lodged in the muffler of the vehicle. When Erika heard a loud noise [the bullet striking her car] she pulled over to inspect her vehicle. At that point Officer Kalina ran up shouting: “I almost killed you.” Erika was arrested for evading in a motor vehicle. The charges were subsequently dismissed.

On appeal, Officer Kalina argued that Erika had not been seized within the meaning of the 4th Amendment since he had not struck her, thus, the bullet had not stopped her movement. The court rejected this argument noting that when the bullet struck the car Erika did stop, thus a seizure had occurred. The court distinguished this case from decisions from other jurisdictions where subjects continued to flee after the bullet had struck their vehicle and courts had found that no seizure had occurred.

After determining that a seizure had occurred, the court examined the facts to determine if the use of force to accomplish this seizure was reasonable. Kalina argued that he believed Erika posed a threat to him and others by her flight. In reviewing the facts, the court noted that Erika was at most guilty of a minor parking offense (severity of offense); that there was no evidence that Erika was driving erratically as she drove off (threat to officers or others) and Officer Kalina was behind Erika’s vehicle, which was traveling away from him when he fired the shot. As such the court concluded that Erika posed no threat of danger to Kalina or anyone else at the time the force was used.

The court denied Officer Kalina summary judgment and qualified immunity.

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