UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 96-40634
_____________________________________
LORENZO COLSTON,
Plaintiff-Appellee,
and
YOLANDA MICHELLE COLSTON,
Individually and as Next Friend of
Lauren Colston and Quinton Colston, Minor Children
Intervenors-Appellees,
VERSUS
BRYAN BARNHART, Texas Department of Public Safety Officer,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:94-CV-207)
______________________________________________________
November 19, 1997
Before KING, DAVIS, and DeMOSS, Circuit Judges
DAVIS, Circuit Judge:*
Trooper Bryan Barnhart appeals the denial of his motion for
summary judgment based on qualified immunity. Because Barnhart’s
use of deadly force to defend himself and others from plaintiff
Lorenzo Colston was objectively reasonable, we conclude that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
district court erred in denying summary judgment on grounds of
qualified immunity. Accordingly, we reverse and render.
I.
On September 29, 1993, at approximately 9:30 p.m., Texas State
Policeman Bryan Barnhart was driving on a dark, isolated part of
U.S. 175 in Henderson County, Texas. Around that time, Trooper
Barnhart directed Marcus Fields to the shoulder of the road because
Fields' automobile had a defective headlight. Appellee Colston was
a passenger in Fields’ car. Barnhart learned during a routine
license check that Fields had an outstanding traffic warrant and
placed him under arrest. Fields informed Barnhart that his wrists
hurt because of recent surgery. As a result, Barnhart did not use
handcuffs to secure Fields' arms behind his body; instead, he used
a flex cuff to secure Fields' hands in front of his body. Barnhart
decided that he would release Fields’ car to Colston if he had a
driver’s license and could safely drive the vehicle. Barnhart
asked Fields if Colston had a driver’s license. Fields said that he
did.
Barnhart then approached the passenger side of Fields’ car and
asked Colston to step out so he could see his driver’s license. As
he stepped out of the car, Colston told Barnhart that he did not
have a license and that he did not drive. Colston was
approximately 6'1" and weighed 225 pounds; Barnhart was about 5'6"
and weighed 160 pounds.
2
Around the time that Barnhart began talking to Colston,
Henderson County Deputy Sheriff Jim Langford arrived at the scene,
but stood near Barnhart’s patrol car and did not immediately
approach Barnhart and Colston.
Barnhart proceeded to question Colston. He first asked
Colston how old he was, and Colston replied that he was 18 years
old.1 Barnhart asked Colston if he had ever driven before; Colston
stated that he had not. After retrieving his clipboard from his
car, Barnhart asked Colston to spell his last name; Colston
complied. Barnhart then asked Colston for his first name. Colston
stated that it was “Sylvester,” which he was unable to spell. After
two failed attempts at spelling “Sylvester,” Colston told Barnhart
his name was Leo. Barnhart asked Colston what his name was three
more times; Colston stated it was Leo. Barnhart then asked Colston
what his middle name was, and he replied that he did not have one.
Barnhart walked over to Fields and asked him what Colston’s
name was; Fields answered that it was Leo. Barnhart asked Fields
about the name Sylvester. Fields stated that he thought it was
Colston’s middle name.
Barnhart returned to Colston and again asked him what his
middle name was. Colston again said that he did not have a middle
name. Barnhart placed his clipboard on Field's car, and asked
Colston whether he was carrying any weapons. Colston responded
1
The record shows that Colston was 29 years old.
3
that he was not.2
Barnhart asked Colston to turn and face the other direction,
Colston took two steps back but did not turn around. Barnhart
ordered Colston to get down on his knees; Colston turned and placed
his hands above his head, but did not get on his knees. Barnhart
repeated the order. As Colston went to his knees, Barnhart pulled
his baton. Once Colston was on his knees, Barnhart told Colston to
remain still and cross his feet, and Colston complied. Colston
asked Barnhart, “why y’all treating me like this?” Barnhart
replied that it was because Colston would not tell him who he was.
Colston then informed Barnhart that his name was Lorenzo Colston
and that he did have a driver’s license in his wallet. Colston
then turned his head and looked at Barnhart.
Barnhart ordered Colston to look straight ahead and to get to
the ground. Colston got on all fours, but then lifted one leg up.3
Langford, who had walked over to Barnhart's side moments earlier,
also ordered Colston to get on the ground. Colston told the
officers he would not get on the ground and began to stand up.
Both officers pushed Colston in an attempt to prevent him from
standing up. As they were doing this, Barnhart and Langford
repeatedly ordered Colston to get down. Colston resisted their
efforts and forced his way to his feet. Barnhart began striking
2
Although Barnhart was unaware of their presence, a shotgun
and a knife were later recovered from Fields’ car.
3
Colston states that he lifted his leg in preparation to run.
4
Colston with his baton, and Langford tried to grab Colston.
Colston violently resisted and knocked Langford to the ground with
a single hard blow. With Langford down, Barnhart struggled to
control Colston; Colston struck Barnhart in the face and knocked
him to the ground. The blow broke Barnhart’s glasses and dazed
him. Langford regained his feet and charged Colston. Colston
knocked him to the ground next to Barnhart, leaving him limp and
motionless.
From his prone position, Barnhart drew his gun. Barnhart
aimed at Colston, who was standing between him and Langford, and
fired a shot that missed. Colston turned, stepped over Barnhart’s
outstretched legs, and took about two steps away from Barnhart
directly toward Barnhart’s patrol car, where Barnhart’s shotgun was
located. At this moment Barnhart fired twice, hitting Colston in
the back of his right arm and in his buttocks.
A video recorder mounted on Barnhart's patrol unit was
operating from the time Barnhart stopped his vehicle. The incident
described above was captured on videotape, which is part of the
record.
Colston filed a 42 U.S.C. § 1983 action alleging, inter alia,
that Barnhart violated his Fourth Amendment rights by using
excessive force against him. Barnhart moved for summary judgment
on the ground of qualified immunity. The district court denied
Barnhart’s motion for summary judgment after concluding that
material issues of fact were presented which precluded summary
5
judgment.
II.
A.
We have jurisdiction to hear appeals from district court
orders denying summary judgment on the basis of qualified immunity
when the appeal is based on an issue of law. Cantu v. Rocha, 77
F.3d 795, 802 (5th Cir. 1996). The district court’s determination
that fact issues were presented that precluded summary judgment
does not necessarily deny us jurisdiction over this appeal.
Coleman v. HISD, 113 F.3d 528, 531 (5th Cir. 1997). We can
determine as a matter of law whether Barnhart is entitled to
qualified immunity after accepting all of Colston’s factual
allegations as true. See Cantu, 77 F.3d at 802-3. We therefore
have interlocutory jurisdiction to determine the legal issue of
whether Barnhart’s conduct was objectively reasonable. Id.
Mitchell v. Forsyth, 472 U.S. 511 (1985); Johnson v. Jones, -- U.S.
--, 115 S.Ct. 2151 (1995); Beherens v. Pelletier, -- U.S. --, 116
S.Ct. 834 (1996); Nerren v. Livingston Police Dep’t, 86 F.3d 469,
472 (5th Cir. 1996).
B.
We review de novo the district court’s order denying summary
judgment on grounds of qualified immunity. Nerren, 86 F.3d at 471.
Qualified immunity shields government officials performing
discretionary functions from civil damage liability if their
6
actions were objectively reasonable in light of clearly established
law. Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.),
cert. denied, 506 U.S. 973 (1992). The evaluation of a qualified
immunity claim involves a two-step inquiry. Harper v. Harris
County, 21 F.3d 597, 600 (5th Cir. 1994). The first step is to
determine whether the plaintiff has alleged a violation of a
clearly established constitutional right. Id. There is no dispute
that Colston has met this burden; the use of excessive force to
apprehend a subject implicates the Fourth Amendment’s guarantee
against unreasonable seizures. See Tennessee v. Garner, 471 U.S.
1 (1985); Graham v. Connor, 490 U.S. 386 (1989).
The second step requires the court to determine whether
Barnhart’s conduct was objectively reasonable under existing
clearly established law. Harper, 21 F.3d at 600. In Graham v.
Connor, 490 U.S. 386, 395 (1989), the Supreme Court explained that
the reasonableness inquiry in an excessive force case is an
objective one; evaluating the officer's conduct under the Fourth
Amendment we must balance the amount of force used against the need
for that force with reference to clearly established law at the
time of the conduct in question. Id. at 396; see also Spann v.
Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993); Fraire, 957 F.2d at
1273.
The Supreme Court instructs that in determining the
reasonableness of Barnhart’s conduct, we are not to employ “the
20/20 vision of hindsight,” Graham, 490 U.S. at 396, and that we
7
must consider “the fact that police officers are often forced to
make split second judgments--in circumstances that are tense,
uncertain, and rapidly evolving--about the amount of force that is
necessary in a particular situation.” Id. at 396-7.
We turn now to the issue of whether it was objectively
reasonable for Barnhart to use deadly force, given the totality of
the circumstances confronting him. Barnhart argues that it was
objectively reasonable, under Tennessee v. Garner, 471 U.S. 1
(1985), for him to use deadly force because a reasonable officer in
his circumstances would have believed that Colston posed a threat
of serious bodily harm or death to himself or Langford. Colston
maintains that it was not objectively reasonable for Barnhart to
believe that Colston posed a danger to either officer at the time
Colston was shot because he was unarmed and attempting to flee.
At the time Barnhart fired his weapon at Colston, the video
tape and the remaining summary judgment evidence establish the
following: Colston had not answered all of Barnhart’s questions
honestly and he had disobeyed both Barnhart’s and Langford’s orders
to get on the ground. Colston, who was much larger than Barnhart,
had violently and forcefully resisted the officers’ attempts to
gain control of him. Colston quickly subdued both officers and
knocked them to the ground with some force. Barnhart was dazed and
his vision was blurred. Langford, who had a loaded weapon on him,
was lying limp and motionless next to Barnhart. Colston was on his
feet near the officer’s outstretched legs. Barnhart's earlier
8
attempts to control Colston with non-deadly force, including
hitting him with a baton, had failed. At the time Barnhart drew
his weapon and fired the first shot, Colston was standing between
Barnhart and Langford in a position to inflict serious harm on the
officers with or without a weapon. When Barnhart fired the two
shots that hit Colston, Colston had moved only two steps from
Barnhart, toward Barnhart’s patrol car, where his shotgun was
located.
Although Colston asserts that he was attempting to flee,
Barnhart had no way to know whether Colston intended to flee or
inflict further injury or death on the officers. We cannot say
that a reasonable officer in Barnhart’s place would not have
believed that Colston posed an immediate danger of serious bodily
harm or death to Barnhart or Langford. As a result, Barnhart’s
decision to use deadly force was objectively reasonable.
Colston argues that Barnhart’s failure to warn him before he
discharged his weapon makes Barnhart’s conduct objectively
unreasonable. We disagree. In Tennessee v. Garner, the Supreme
Court held that an officer who determines that deadly force is
necessary to protect himself or others should give a warning if it
is “feasible.” Garner, 471 U.S. at 10. Barnhart, lying on his
back with Colston nearby, had to immediately decide whether to
shoot. In light of the totality of the circumstances facing
Barnhart, Barnhart’s failure to give a warning was not objectively
unreasonable.
9
III.
Because a reasonable officer in Barnhart's position could have
believed that he and Langford were in imminent danger of serious
bodily harm or death at the hand of Colston, Barnhart was
objectively reasonable in shooting Colston. Accordingly, the
district court's order denying Barnhart's motion for summary
judgment on grounds of qualified immunity is reversed and judgment
is rendered granting that motion.
REVERSED and RENDERED.
DEMOSS, Circuit Judge, dissenting:
Appellant Bryan Barnhart, who is white and a state policeman,
twice shot Appellee Lorenzo Colston, who is black, in the back. At
the time Barnhart’s shots were fired, Colston was fleeing a scene
where he had been unjustifiably beaten by Barnhart and Jim
Langford, who is white and a deputy sheriff. Colston was not under
arrest. Colston did not have a gun nor a knife nor a club nor any
other weapon on his person. Neither Barnhart nor Langford was
injured in the altercation which preceded Colston’s flight, but
Barnhart nevertheless fired two shots which seriously injured
Colston and resulted in his permanent disability and disfigurement.
Notwithstanding these facts, Barnhart has asked this Court to
reverse the district court’s denial of his motion for summary
judgment and adjudge him qualifiedly immune because his actions
10
were objectively reasonable as a matter of law. Because this Court
lacks appellate jurisdiction to decide Barnhart’s appeal, and
because I disagree with the majority’s conclusion that Barnhart’s
shooting of Colston was objectively reasonable, I dissent.
I. Appellate Jurisdiction
The appeal from the district court’s denial of summary
judgment should be dismissed because this Court lacks appellate
jurisdiction over Barnhart’s appeal from that ruling.
Ordinarily, this Court has power only to review a “final
decision.” 28 U.S.C. § 1291. A “collateral order” doctrine has
developed to allow courts of appeals to consider interlocutory
appeals in certain circumstances. See Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541 (1949). “To come within the ‘small class’
of decisions excepted from the final-judgment rule by Cohen, the
order must conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the action,
and be effectively unreviewable on appeal from a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
The denial of a substantial claim of qualified immunity may be
appealable before final judgment. See Mitchell v. Forsyth, 472
U.S. 511, 525 (1985). The right to appeal from such a denial of
summary judgment is not, however, absolute. In Johnson v. Jones,
515 U.S. 304 (1995), the Supreme Court clarified its standard,
-11-
11
noting that
a district court’s order denying a defendant’s
motion for summary judgment [is] an immediately
appealable “collateral order” (i.e., a “final
decision”) under Cohen, where (1) the defendant was
a public official asserting a defense of “qualified
immunity,” and (2) the issue appealed concern[s],
not which facts the parties might be able to prove,
but, rather, whether or not certain given facts
showed a violation of “clearly established” law.
Johnson, 515 U.S. at 311 (quoting Mitchell, 472 U.S. at 528).
Johnson involved a plaintiff’s § 1983 claim arising from the
alleged use of excessive force by police officers. Because the
plaintiff, a diabetic, was having an insulin seizure at the time of
his beating at the hands of the police, he was unable to
specifically identify the officers who had beat him. Three
officers who were named as defendants moved for summary judgment,
pointing out that they were not identified as the perpetrators and
that other officers could have committed the offense. The motion
was denied; the officers appealed. See id. at 307-08. Affirming
the Seventh Circuit’s dismissal of the appeal, the Supreme Court
concluded that there was a lack of appellate jurisdiction because
there was no question of law at issue, but rather the appeal merely
concerned a question of the “evidence sufficiency” of the officers’
contention that “we didn’t do it.” Id. at 313, 316. The present
case is controlled by Johnson.
First, the competing claims in this case resemble Johnson in
light of the “I didn’t do it” aspect of Barnhart’s defense.
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12
Colston claims that he was shot in the back as he escaped from the
scene; in contrast, Barnhart claims that he fired his weapon in
self-defense. The district court stated its grounds for denying
Barnhart’s motion for summary judgment in plain language: “The
Court has reviewed the summary judgment evidence and is convinced
that issues of material fact exist which preclude summary judgment
in this case.” Thus, just as in the case of the Johnson officers’
“we didn’t do it” defense, in this case “the District Court’s
determination that the summary judgment record in this case raised
a genuine issue of fact . . . was not a ‘final decision’ within the
meaning of the relevant statute.” Id.; see also Cantu v. Rocha, 77
F.3d 795, 803 (5th Cir. 1996).
Behrens v. Pelletier, 116 S. Ct. 834 (1996), is not to the
contrary. Behrens reaffirms the Mitchell holding: “an order
denying qualified immunity, to the extent it turns on an ‘issue of
law,’ is immediately appealable.” Behrens, 116 S. Ct. at 841
(citation omitted); see also Cantu, 77 F.3d at 803. Moreover, the
Court explicitly reiterated the Johnson holding, that:
determinations of evidentiary sufficiency at
summary judgment are not immediately appealable
merely because they happen to arise in a
qualified-immunity case; if what is at issue in the
sufficiency determination is nothing more than
whether the evidence could support a finding that
particular conduct occurred, the question decided
is not truly “separable” from the plaintiff’s
claim, and hence there is no “final decision” under
Cohen and Mitchell.
-13-
13
Behrens, 116 S. Ct. at 842 (citing Johnson, 515 U.S. at 312-15).
Behrens therefore does not control this case, which is unappealable
precisely because of the absence of an issue of law.
Furthermore, our Court lacks appellate jurisdiction even if
the dispute is not characterized as a Johnson-style “I didn’t do
it” scenario. The state of the record was determined by the
district court to be insufficiently developed to permit findings of
fact upon which an evaluation of the objective reasonableness of
Barnhart’s actions could be based. In such a case, our Court lacks
appellate jurisdiction over an appeal from denial of summary
judgment. See Naylor v. Louisiana, 123 F.3d 855, 857 (5th Cir.
1997); see also Hart v. O’Brien, No. 96-40151, slip op. 548, 584-
87, 1997 WL 656282, at *152-*159 (5th Cir. Nov. 6, 1997)
(Benavides, J., dissenting); Tamez v. City of San Marcos, 62 F.3d
123, 124-25 (5th Cir. 1995); Harper v. Harris County, 21 F.3d 597,
601 (5th Cir. 1994).
The district court in this case declared that an issue of
material fact exists which undermines any determination at summary
judgment of “whether Officer Barnhart had a reasonable belief of
danger from the fleeing suspect which would justify the use of
deadly force in self-defense.” The court therefore concluded that
summary judgment was inappropriate because both Barnhart’s claim of
qualified immunity and Colston’s claim under 42 U.S.C. § 1983 hinge
on a determination of the objective reasonableness of Barnhart’s
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14
actions. See Graham v. Connor, 490 U.S. 386, 394 (1989); Tennessee
v. Garner, 471 U.S. 1, 7-12 (1985). That decision was based on an
evaluation of the facts in the case; this appeal thus contains no
cognizable issue of law.
The majority attempts to establish appellate jurisdiction by
assuming away the disputed issues of material fact found by the
district court. Specifically, the majority purports to accept
Colston’s factual allegations as true. It then turns to the
question of the objective reasonableness inquiry, which our Court
has acknowledged to be a question of law that may be decided by a
judge in the absence of any dispute over material facts. See
Cantu, 77 F.3d at 802. But the majority then goes astray, drawing
inferences in the wrong direction and viewing the record in the
light most favorable to Barnhart.
In light of the district court’s conclusion that the objective
reasonableness of Barnhart’s actions could not be determined at
summary judgment because of the unsettled state of the record--a
conclusion based solely on the district court’s evaluation of
“evidence sufficiency”--our Court has no appellate jurisdiction to
review that judgment. See Naylor, 123 F.3d at 857; see also Tamez,
62 F.3d at 124-25; Harper, 21 F.3d at 601. The resolution of
disputed material facts is not to be achieved by a judge through
summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986). A dispute concerning material fact issues can
-15-
15
only be resolved through resort to the finder of fact--in this
case, a jury.
This appeal does not present an issue separable from the
merits of Barnhart’s claim, as is required by Coopers & Lybrand,
Mitchell and Johnson. The absence of an issue of law regarding
Barnhart’s qualified immunity claim that is separable from the
ultimate merits of Colston’s lawsuit removes this case from the
collateral-order category of final decisions and deprives this
Court of appellate jurisdiction. Furthermore, the issue of whether
Barnhart used excessive force in this case can be reviewed by this
Court upon appeal from a final judgment by the district court, and
such later review will have the benefit of all of the evidence
produced at trial and the jury’s resulting findings of fact. In
two respects, therefore--the absence of an issue separate from the
merits and the ultimate reviewability of Barnhart’s defense on
appeal from final judgment--this case fails to pass the
separability test of Cohen, Coopers & Lybrand, and Mitchell for
interlocutory appeal.
II. Summary Judgment
Assuming, arguendo, that appellate jurisdiction does exist
with respect to Barnhart’s appeal, the district court’s denial of
summary judgment should be affirmed.
The Fourth Amendment’s protection against unreasonable
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16
seizures of the person has been applied in causes of action under
42 U.S.C. § 1983 to impose liability on police officers who use
excessive force against citizens. The relevant inquiry is one of
objective reasonableness. See Mitchell, 490 U.S. at 397. The
majority’s conclusion that Barnhart’s shooting of Colston was
objectively reasonable is highly dubious.
As a threshold matter, I again note that the majority does not
accept all of Colston’s factual allegations as true, as it purports
to do. Instead, the majority takes the opposite approach and
allows numerous inferences in Barnhart’s favor. For example,
Colston frames his complaint in terms of excessive force used in
preventing his attempted escape from abusive treatment. The
majority, however, describes a scene in which Colston violently
resisted the police, physically overpowered them, and then remained
on the scene, standing ready to inflict serious injuries had
Barnhart not resorted to using his firearm. The majority’s
treatment departs radically from the ordinary practice of indulging
factual inferences on summary judgment in favor of the nonmovant.
In light of the majority’s hostile view of Colston’s charge,
it is perhaps not surprising that they erroneously conclude that
Barnhart’s conduct was objectively reasonable. A number of factors
lead me to the opposite conclusion.
First, it is significant that Colston’s assault on the
officers never involved the use of a weapon. Not only did Colston
-17-
17
never use a weapon against Barnhart and Langford, but he did not
disarm them in any way. The ultimate balance of power was at all
times in the officers’ favor. Colston may have initially overcome
the officers with his bare fists, but it is not too much to expect
that police officers be prepared to subdue an unruly detainee
without having to resort to the use of a firearm.
Second, the nature of the injuries inflicted by Colston does
not suggest that a resort to deadly force was objectively
reasonable. The record bears no indication that either Barnhart or
Langford required medical attention after the incident. It is true
that they were both knocked down, that they may have been
temporarily dazed, and that Barnhart’s glasses were broken. But
the effects of Colston’s backlash (against what a reasonable jury
could find was unnecessary violence initiated by the officers) were
not injuries of any serious or life-threatening magnitude.
Finally, because the officers never asserted their authority
to arrest Colston, we should be hesitant to indulge in Barnhart’s
favor the law’s recognition of factors which may support the
reasonableness of using deadly force against a fleeing person.
See, e.g., Garner, 471 U.S. at 3 (officer called out “police,
halt”); Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir.) (individual
escaping from custody during transport from one holding cell to
another), cert. denied, 513 U.S. 1045 (1994); Fraire v. City of
Arlington, 957 F.2d 1268 (5th Cir.) (officer yelled “Stop, police,”
-18-
18
or “Halt, police,” several times), cert. denied, 506 U.S. 973
(1992); Jamieson v. Shaw, 772 F.2d 1205 (5th Cir. 1985) (high-speed
car chase). Regardless, Barnhart’s failure to give a warning,
which he was obliged to give, if feasible, before the use of deadly
force against Colston, see Garner, 471 U.S. at 11-12, cuts strongly
against a finding on summary judgment that Barnhart’s actions were
objectively reasonable.
* * *
The district court’s ruling that there are disputed facts
material to determining the objective reasonableness of Barnhart’s
conduct should preclude appellate review of Colston’s assertion of
qualified immunity at this stage of the proceedings. Furthermore,
assuming that we do have jurisdiction, the judgment of the district
court should be affirmed because Colston has alleged a violation of
his constitutional rights, and a jury’s determination that
Barnhart’s conduct was not reasonable could be supported by the
summary judgment record.
In deciding that Barnhart’s conduct was objectively
reasonable, the majority stretches the holding of Tennessee v.
Garner far beyond that decision’s progeny. It is notable that the
core result of Garner was a restriction, not an expansion, of the
use of deadly force by law enforcement officers. To the extent
that language in Garner attempts to trace the boundaries of the
constitutional use of deadly force by the police, it is very
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19
difficult indeed to conclude that Barnhart’s actions fall within
the purview of Garner’s guidance.
To give this Court’s stamp of approval to Barnhart’s actions
is to ignore the Supreme Court’s poignantly relevant observation:
It is not better that all felony suspects die than
that they escape. Where the suspect poses no
immediate threat to the officer and no threat to
others, the harm resulting from failing to
apprehend him does not justify the use of deadly
force to do so. It is no doubt unfortunate when a
suspect who is in sight escapes, but the fact that
the police arrive a little late or are a little
slower afoot does not always justify killing the
suspect. A police officer may not seize an
unarmed, nondangerous suspect by shooting him dead.
Garner, 471 U.S. at 11.
I respectfully dissent.
g:\opin\96-40634.dis 20