In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2211
ALEIA TOUSIS, As Special Administrator
of the Estate of Gus Tousis, deceased,
Plaintiff-Appellee,
v.
KEITH BILLIOT, Special Agent, Drug
Enforcement Administration,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cv-03012 — Sharon Johnson Coleman, Judge.
____________________
ARGUED JANUARY 5, 2023 — DECIDED OCTOBER 18, 2023
____________________
Before FLAUM, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Aleia Tousis, as special administra-
tor of the estate of her father, Gus Tousis, sued a law enforce-
ment officer who shot and killed Gus Tousis following a high-
speed chase. The officer moved for summary judgment on
qualified immunity grounds, and the district court denied the
motion. We reverse.
2 No. 22-2211
I.
Because this appeal arises from the denial of the officer’s
motion for summary judgment, we view the facts in the light
most favorable to the nonmoving party, the daughter of the
driver involved in this incident. Plumhoff v. Rickard, 572 U.S.
765, 768 (2014). We may not make credibility determinations
or weigh the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.
2003). We will refer to Gus Tousis as “Tousis" and to his
daughter as Aleia.
The Drug Enforcement Administration (“DEA”) began in-
vestigating Tousis in late 2017. Based on that investigation,
the DEA obtained a warrant to place a tracking device on Tou-
sis’s car. In addition to providing investigators with the loca-
tion of Tousis’s car, the device tracked the speed at which the
vehicle was traveling. On June 2, 2018, the investigating
agents believed that Tousis was involved in drug trafficking,
that he had a source named Vernon Turner in the Aurora, Il-
linois area, and that he would be going to Turner’s home that
day to procure drugs. They decided to surveil Turner’s home,
observe whether Tousis procured illegal drugs, and then ar-
rest Tousis and seize any drugs that he obtained from Turner.
On the day in question, DEA Task Force Officer Robert
Boehnke surveilled Turner’s home and observed Tousis arriv-
ing in a gray or silver SUV. Boehnke saw Tousis enter
Turner’s garage carrying a bag, and then exit the garage car-
rying the same bag. Boehnke noted a change in the appear-
ance of the bag and believed that a drug transaction had taken
place. He informed his fellow officers about what he saw. Spe-
cial Agent Keith Billiot, the defendant here, was a supervisory
special agent involved in the investigation that day. He
No. 22-2211 3
understood that Tousis was suspected of dealing cocaine and
heroin, and that he had a record of drug-related arrests as well
as arrests for other offenses. Agent Billiot followed the reports
from Officer Boehnke and other DEA agents that day.
DEA agents enlisted the aid of the DuPage County Sher-
iff’s Department to conduct a traffic stop of Tousis’s SUV after
it left Turner’s home. When a sheriff’s deputy attempted the
stop near I-88 and Yackley Avenue, Tousis fled at high
speeds, with the tracking device showing that the car acceler-
ated from 64.6 miles per hour to 115.2 miles per hour on I-88
during the chase. Because of the danger to the officers and the
public posed by Tousis’s reckless flight, the officers ended
their pursuit. Tousis was last observed by those officers weav-
ing in and out of traffic at dangerous speeds. The tracking de-
vice continued to show Tousis’s location and speed, and the
officers, including Agent Billiot, followed his progress. After
the officers ended the visible pursuit on I-88, Tousis reduced
his speed at certain points. The officers hoped to follow Tousis
to his home or to some place where it would be safe to appre-
hend him. Billiot learned from his fellow officers that Tousis
was heading eastbound on Interstate 290 at a high rate of
speed. Agent Billiot was driving an unmarked car that was
equipped with a siren and emergency lights. He proceeded to
Interstate 290 and spotted Tousis but did not activate his
lights or siren. Billiot followed Tousis off the highway at Cen-
tral Avenue in Chicago, where Tousis proceeded south-
bound. At this point, Tousis was driving at normal speeds,
but he was taking evasive actions that indicated to Billiot that
Tousis suspected he was being followed.
Billiot continued to follow Tousis until they were both
headed northbound on Central Avenue. At that point in the
4 No. 22-2211
road, Central Avenue has two lanes in each direction with a
median separating them. Tousis was in the left-hand lane and
Billiot in the right-hand lane when Billiot observed that Tou-
sis was approaching a red light and would be stopped behind
two cars at the light. Billiot decided that this was a good place
to make a second attempt at a traffic stop because Tousis
would be blocked in by traffic and would be unable to flee.
Billiot activated his emergency lights and siren and pulled in
front of Tousis’s car at a northwest angle. The position of Bil-
liot’s car in relation to Tousis’s car placed the driver’s door of
Billiot’s car directly in front of Tousis’s car at a distance of ap-
proximately ten to twenty-five feet. Officer Boehnke was ap-
proaching from behind and was over a hundred yards away
from the scene of the confrontation at the moment that Billiot
pulled in front of Tousis. After stopping his car, Billiot
grabbed his carbine rifle, exited his car wearing a well-
marked DEA law enforcement vest and ran towards Tousis’s
stationary car, shouting commands at him to turn off the car
and exit the vehicle. Closing the distance between the cars as
he ran, Billiot raised his rifle and pointed it at Tousis, but Tou-
sis ignored Billiot’s orders. Instead, Tousis moved the car for-
ward, maneuvering to the right where the lane was now open.
There was nothing between Agent Billiot and Tousis’s car. As
soon as Tousis’s car pulled forward, Billiot fired a single shot
at Tousis with his rifle. Backpedaling from the moving car,
Billiot fell onto the median, injuring his back. The bullet struck
the steering wheel “off-center to the left from the top of the
steering wheel,” and a fragment hit Tousis in the neck. R. 62-2,
at 21, ¶ 56. When comparing the location of the bullet hole in
the windshield with the location of the bullet strike on the
steering wheel, the positioning indicates that, at the moment
that Billiot fired his weapon, “Tousis was turning his wheel
No. 22-2211 5
to the right, maneuvering his vehicle away from Billiot, and
Billiot was angled to the driver[’s] side of the front end of Tou-
sis’s vehicle.” Id.
After the shot was fired, Tousis’s car accelerated, veering
to the right. The car struck a light pole, jumped a curb, and
came to a stop. The car was moving fast enough that, when it
hit the light pole, the front right wheel was torn off and the
axle was broken. Officer Boehnke pulled up and saw that
Tousis was slumped down and bleeding from the neck. Both
Boehnke and Billiot tried to open the car, but the doors were
locked and their efforts to break the windows with a hand
strike, with a device called a “window break,” and with a ba-
ton were all unsuccessful. Eventually, Tousis was extracted
from the car with the aid of an Illinois Department of Trans-
portation worker who broke a window with a sledgehammer.
Tousis was taken to a hospital where he was pronounced
dead. Billiot was also taken to a hospital where he was treated
for injuries to his back and released the same day. The police
officers recovered approximately 300 grams of cocaine from
Tousis’s car.
Before we move on to the legal analysis, we note that there
were several factual disputes between the parties in the sum-
mary judgment briefing below but none are material. In par-
ticular, Aleia asserted that summary judgment was inappro-
priate because of disputes regarding the timing of the shoot-
ing, the distance between Billiot and Tousis at the moment the
shot was fired, whether Billiot was struck by Tousis’s car dur-
ing the incident, and the positioning of Billiot relative to Tou-
sis’s car. But certain concessions made in the district court by
both parties clarify that the disputes to which Aleia refers are
not material to the relevant legal question.
6 No. 22-2211
As will become clear below, the most important fact for
the legal analysis of the claim of qualified immunity is
whether Tousis’s car was in forward motion in the vanish-
ingly small space between that car and Agent Billiot at the
moment Billiot fired the rifle. Aleia asserts that Tousis was not
driving directly toward Billiot at the moment the shot was
fired but was “maneuvering” to the right in an attempt to flee.
Billiot accepts that Tousis’s tires were turned to the right as
the car began to move forward. Although Aleia attempts to
manufacture a fact dispute regarding whether the car moved
forward at all before Billiot fired the shot, all of the evidence
in the record, including concessions by Aleia in summary
judgment proceedings in the district court, demonstrates that
the vehicle was in forward motion, albeit with the wheels
turned to the right, before Billiot fired the shot. In particular,
Aleia conceded below that “as soon as Tousis’s vehicle pulled
forward, Billiot fired his weapon.” R. 62-2, at 19, ¶ 53. Both
Agent Billiot and Officer Boehnke testified that Billiot fired
the shot after Tousis’s vehicle began to move forward. R. 59,
Ex. A, at 123 (Billiot Dep. at 106); R. 59, Ex. B, at 149 (Boehnke
Dep. at 42–44). Moreover, a disinterested bystander who was
standing at a nearby exit ramp also reported to the police that
he saw an officer position himself in front of a car, that the
vehicle began to move in the direction of the officer, that he
heard a gunshot and saw the officer fall to the ground. R. 59,
Ex. O, at 234 (Supplementary Police Report, at 3). Even with-
out this additional evidence, Aleia’s concession alone estab-
lishes that the vehicle was in motion prior to the shot being
fired.
Aleia nevertheless cites a Supplemental Police Report
(“Report”) that summarized an interview of Officer Boehnke
as evidence that Tousis did not drive forward until after
No. 22-2211 7
Billiot fired the shot, suggesting that his forward motion at
that point was not the result of any intentional action on Tou-
sis’s part. The summary of Boehnke’s interview in the Report
states that he was approaching the area where Tousis’s car
had been spotted and saw that it was stopped at a northbound
traffic signal. In that summary, Boehnke described hearing
the gunshot and then seeing Billiot fall to the ground. He then
saw Tousis’s car accelerate to the right and hit the light pole
before coming to rest. R. 59, Ex. F, at 187. Aleia reads this in-
terview summary as an admission that the car was not in mo-
tion before the shot was fired. But the Report’s silence on
whether the car was in motion before the shot was fired is not
evidence that the car was stopped. It would be pure specula-
tion to fill in the gap in the Report with such an assumption.
Gupta v. Melloh, 19 F.4th 990, 997 (7th Cir. 2021) (a court need
not give credence to facts based on speculation or conjecture);
Eaton v. J.H. Findorff & Sons, Inc., 1 F.4th 508, 513 (7th Cir. 2021)
(speculation is not enough to create a genuine issue of fact for
the purposes of summary judgment). At his deposition,
Boehnke was asked specifically about the movement of Tou-
sis’s car before the shot was fired. Boehnke explained that he
was driving down a hill toward the scene and saw Tousis pull
forward, then heard the gunshot, and then saw Billiot fall to
the ground. He then saw Tousis’s car shoot off to the right
where it hit a light pole, jumped a curb and came to rest. None
of this testimony was inconsistent with the Report; it simply
supplemented the Report on an issue not raised in the Report.
The undisputed evidence demonstrates that Billiot fired the
shot after Tousis’s car began to move forward.
Aleia also argues that the distance between Billiot and
Tousis’s car at the moment of the shot is in dispute. But Aleia
also conceded below that Billiot stopped his car between ten
8 No. 22-2211
and twenty-five feet in front of Tousis’s car, and then ran to-
ward Tousis’s vehicle as fast as he could, shortening the dis-
tance between them. R. 62-2, at 20, ¶ 53. By any account, that
would mean that Billiot stood much less than twenty-five feet
from the front of Tousis’s car, or fewer than two car lengths.
As for the positioning of Billiot in front of Tousis’s car, Billiot
has accepted for summary judgment purposes that the angle
at the time of the shot indicated that the wheels of the car were
turning rightward at the moment of the shot, toward the lane
of traffic that was then open. Aleia also denies Billiot’s claim
that the car backed up before it pulled forward and urges us
to reject Billiot’s claim that he was hit by Tousis’s car as he
backed away. But Billiot accepts for summary judgment pur-
poses that Tousis did not back up before moving forward, and
that Billiot was not struck by Tousis’s car. Because Billiot ac-
cepts Aleia’s version of the facts for summary judgment pur-
poses, none of these disputes are material to the legal analysis
in this claim for qualified immunity.
To summarize, for the purposes of the qualified immunity
analysis, the material undisputed facts demonstrate that
Agent Billiot pulled in front of Tousis shortly after Tousis en-
gaged in a reckless, high-speed flight from police officers after
leaving a suspected drug house; that Billiot exited his car and
ran toward Tousis, placing himself fewer than two car lengths
from the front of Tousis’s car, shouting commands to turn off
and exit the vehicle; that Tousis, turning his wheels to the
right, began to move forward; and that Billiot then fired the
fatal shot, fearing both for his own safety and for that of the
public if Tousis resumed his reckless flight.
That brings us to the basis for the appeal: Aleia Tousis
sued Billiot under 42 U.S.C. § 1983, alleging that Billiot
No. 22-2211 9
violated her father’s rights under the Fourth Amendment
when Billiot used excessive force to effect a seizure of her fa-
ther. Billiot moved for summary judgment on the grounds of
qualified immunity. The district court denied the motion, and
Billiot appeals.
II.
On appeal, Billiot contends that he is entitled to qualified
immunity as a matter of law. Specifically, he asserts that he
did not violate Tousis’s Fourth Amendment rights when he
fired the shot, and that it was not clearly established at the
time of the incident that the use of deadly force in these cir-
cumstances violated the Fourth Amendment. Although an or-
der denying summary judgment is generally not a final deci-
sion within the meaning of 28 U.S.C. § 1291, and is thus not
usually immediately appealable, the general rule does not ap-
ply when the summary judgment motion is based on quali-
fied immunity. Plumhoff, 572 U.S. at 771. Because qualified im-
munity is immunity from suit rather than a defense to liabil-
ity, pretrial orders denying qualified immunity generally fall
within the collateral order doctrine. Plumhoff, 572 U.S. at 771–
72. The questions presented here, namely, whether Billiot vi-
olated the Fourth Amendment and whether his conduct vio-
lated clearly established law, are purely legal and so appellate
review is appropriate. Plumhoff, 572 U.S. at 773. We review the
district court’s denial of summary judgment de novo, examin-
ing the record in the light most favorable to the nonmovant
and construing all reasonable inferences from the evidence in
her favor. Anderson, 477 U.S. at 255; Tolliver v. City of Chicago,
820 F.3d 237, 241 (7th Cir. 2016). Summary judgment is appro-
priate when there are no genuine disputes of material fact and
10 No. 22-2211
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Tolliver, 820 F.3d at 241.
There are two inquiries in determining whether qualified
immunity applies: whether the facts, taken in the light most
favorable to the party asserting the injury show that the of-
ficer’s conduct violated a constitutional right; and whether
the right at issue was “clearly established” at the time of the
officer’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223,
232 (2009); see also District of Columbia v. Wesby, 583 U.S. 48,
62–63 (2018) (officers are entitled to qualified immunity under
section 1983 unless (1) they violated a federal statutory or con-
stitutional right, and (2) the unlawfulness of their conduct
was clearly established at the time). Although the Supreme
Court considers it beneficial to consider the first prong of the
test before engaging with the second, courts may “exercise
their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pear-
son, 555 U.S. at 236. Aleia claims that Billiot employed exces-
sive force in effecting a seizure of Tousis, a claim that is ana-
lyzed under the Fourth Amendment’s objective reasonable-
ness standard. Graham v. Connor, 490 U.S. 386, 388 (1989).
We exercise our discretion to focus on the second prong of
the qualified immunity test in deciding this issue: whether
Billiot’s use of deadly force in this situation violated clearly
established law. “‘Clearly established” means that, at the time
of the officer’s conduct, the law was sufficiently clear that
every reasonable official would understand that what he is
doing is unlawful. Gupta, 19 F.4th at 1000 (citing Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011)). The Supreme Court has held
that “[w]here the officer has probable cause to believe that the
No. 22-2211 11
suspect poses a threat of serious physical harm, either to the
officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force.” Tennessee v. Garner,
471 U.S. 1, 11 (1985); see also Tolliver, 820 F.3d at 245 (same).
The fact-specific nature of whether an officer used excessive
force depends on the totality of the circumstances surround-
ing the encounter. Tolliver, 820 F.3d at 245; Scott v. Edinburg,
346 F.3d 752, 756 (7th Cir. 2003).
If a suspect threatens the officer with a weapon,
that risk of serious physical harm has been es-
tablished. … In assessing whether force was ex-
cessive, we must analyze the actions of the of-
ficer from the objective perspective of a reason-
able officer on the scene, rather than with the
20/20 vision of hindsight. … Moreover, the rea-
sonableness calculus must allow for the fact that
officers are often forced to make split-second
decisions about what amount of force is neces-
sary in circumstances that are tense, uncertain
and rapidly evolving.
Tolliver, 820 F.3d at 245 (citations omitted).
An automobile may be used as a deadly weapon. Tolliver,
820 F.3d at 245; Scott, 347 F.3d at 757. As is the case here, in
Tolliver, the plaintiff was a driver who was involved in an al-
tercation with police officers attempting to make an arrest. In
remarkably similar circumstances, the officers who fired the
shots that injured Tolliver were fewer than two car lengths
away and on foot when Tolliver’s car began to move forward
in the general direction of the officers. As is the case here, one
of the officers was injured when he fell as he tried to evade
the moving car. Tolliver asserted that he was moving forward
12 No. 22-2211
at only three miles per hour, too slowly to injure the officers,
but we noted that the officers had only seconds to react and
could not know whether Tolliver would accelerate and close
the distance more quickly, shortening the space and time in
which to react. They knew only that they had stopped a car
being driven by a man purportedly transporting cocaine, and
that the man had responded by first backing up and then by
moving towards them as they stood in front of the car. We
concluded that qualified immunity applied to the officers’ ac-
tions because “[r]easonable officers in their circumstances
would have perceived the car as a deadly weapon that created
a threat of serious physical harm.” Tolliver, 820 F.3d at 246.
As in Tolliver, Billiot was immediately in front of Tousis’s
car, much less than two car lengths away, when the vehicle
began to move forward. That the wheels were turned to the
right does not change the calculus. First, in a very small space,
even a car maneuvering to the right poses a serious danger to
a person standing in front of it. Cars making turns do not pro-
ceed horizontally; they follow an arc, and the undisputed ev-
idence establishes that Billiot was standing very close to the
front end of Tousis’s car when it began to move forward and
to the right. Indeed, Aleia repeatedly faults Billiot for placing
himself in the zone of danger. Response Brief at 11; R. 62, at
13, ¶ 44. Second, Billiot had no way of knowing whether Tou-
sis would change direction or accelerate. As in Tolliver, a rea-
sonable officer in these circumstances would be in fear of be-
ing hit by the moving vehicle.
Aleia Tousis is convinced that her father did not intend to
hit the officer but was simply trying to “evade Agent Billiot.”
Response Brief at 20. Even if we assume that Aleia’s specula-
tion is correct, Billiot had no way of knowing Tousis’s
No. 22-2211 13
intentions and was forced to react in a matter of seconds to
Tousis’s actions based on what Billiot knew at the time. Billiot
knew that Tousis had already fled law enforcement once, only
minutes earlier, at reckless speeds, weaving in and out of traf-
fic, endangering the lives of officers in pursuit and members
of the public with whom he shared the road. Billiot was con-
cerned not only for his own safety but for that of the public
because of Tousis’s extremely reckless flight. In Plumhoff, the
Supreme Court addressed whether a suspect’s reckless flight
justified the use of deadly force after a pause in the chase and
an attempt to resume flight:
[T]he chase in this case exceeded 100 miles per
hour and lasted over five minutes. During that
chase, Rickard passed more than two dozen
other vehicles, several of which were forced to
alter course. Rickard’s outrageously reckless
driving posed a grave public safety risk. And
while it is true that Rickard’s car eventually col-
lided with a police car and came temporarily to
a near standstill, that did not end the chase. Less
than three seconds later, Rickard resumed ma-
neuvering his car. Just before the shots were
fired, when the front bumper of his car was
flush with that of one of the police cruisers,
Rickard was obviously pushing down on the ac-
celerator because the car’s wheels were spin-
ning, and then Rickard threw the car into re-
verse “in an attempt to escape.” Thus, the rec-
ord conclusively disproves respondent’s claim
that the chase in the present case was already
over when petitioners began shooting. Under
the circumstances at the moment when the
14 No. 22-2211
shots were fired, all that a reasonable police of-
ficer could have concluded was that Rickard
was intent on resuming his flight and that, if he
was allowed to do so, he would once again pose
a deadly threat for others on the road.
Plumhoff, 572 U.S. at 776–77. In those circumstances, the Court
concluded that the police acted reasonably in using deadly
force to end that risk. 572 U.S. at 777.
Once again, the circumstances are remarkably similar to
the situation presented here. Tousis had engaged in a lengthy,
reckless flight at speeds in excess of 114 miles per hour, weav-
ing in and out of traffic as he fled officers who were forced to
abandon the pursuit in the interest of public safety. By Aleia’s
own admission, at the time that Billiot fired the shot, Tousis
was maneuvering to the empty right lane in order to evade
the police once again. A reasonable officer could have con-
cluded both that Tousis was intent on resuming his flight and
that he would again pose a serious danger to public safety. In
light of Tolliver and Plumhoff, Billiot’s actions thus did not vi-
olate clearly established law; in fact, established law holds to
the contrary that the officer’s actions were objectively reason-
able in substantially similar situations.
Aleia’s arguments to the contrary do not withstand scru-
tiny. Because we have elected to decide the case on the second
prong of the qualified immunity analysis, we need not engage
the appellant’s arguments related to the first prong, whether
Billiot violated Tousis’s Fourth Amendment rights. We con-
sider instead only Aleia’s arguments related to whether Billiot
violated clearly established law by using deadly force in these
circumstances. On the issue of the use of deadly force when
there is a danger to the officer, Aleia relies on Estate of Starks
No. 22-2211 15
v. Enyart, 5 F.3d 230 (7th Cir. 1993). She contends that Starks
clearly established that deadly force could not be used against
a non-threatening individual when the officer created the en-
counter that ostensibly permitted the use of deadly force. As
for the use of deadly force when an individual poses a serious
risk to the public, Aleia argues that Plumhoff is distinguisha-
ble.
In Starks, the plaintiff stole a taxicab and drove it to a
nearby fast-food parking lot. Starks, 5 F.3d at 232. Three uni-
formed officers arrived in two marked police cars and parked
both cars behind the cab. The officers then surrounded the car
—one officer stood in front of the car but behind a utility pole,
one stood behind the car, and one stood next to the driver’s
door—and confronted Starks. Starks refused an order to exit
the cab, and tussled with an officer who opened the driver’s
door, pulling it closed again and locking the doors. After
Starks ignored a second order to exit the cab, he put the car in
reverse and slowly backed into the police car parked behind
him. He then drove forward and to the right but was blocked
by a utility pole. Starks then backed up to the left to improve
his position relative to the utility pole, put the car in drive,
and floored the accelerator. Starks would have cleared the
pole had he been allowed to continue but the officers fired on
the car and Starks died as a result of his wounds.
The parties disputed whether the officer in front of the car
emerged from behind the relative safety of the utility pole be-
fore or after the car began to move, a question that we found
material to the qualified immunity analysis. Examining the
totality of the circumstances, we noted that Starks’ underlying
crime was not accomplished violently. Although Starks was
attempting to flee, he had not menaced an officer or civilian
16 No. 22-2211
with a weapon, at least not until an officer appeared in front
of the car. Starks had not initially maneuvered the cab in so
reckless a manner that a reasonable officer would fear for his
safety or that of the community. The plaintiff conceded that if
the officer had moved in front of the car before Starks began
to drive forward, then the officers would have been justified
in firing their weapons. The plaintiff also conceded that a rea-
sonable officer could have moved out from behind the pole
after the cab had begun moving forward if there was enough
time for Starks to stop the cab before striking him.
But the factual dispute regarding the sequence of events
made it impossible to decide the qualified immunity question
at the summary judgment stage:
The key dispute for the factfinder will be
whether [the officer] stepped in front of Starks’
rapidly moving cab, leaving Starks no time to
brake. If he did, then [the officer] would have
unreasonably created the encounter that osten-
sibly permitted the use of deadly force to pro-
tect him, because the decedent would have been
unable to react in order to avoid presenting a
deadly threat to [the officer]. On the other hand,
if [the officer] was in the path of the car before
the car started forward or if the factfinder con-
cludes that Starks could have braked but chose
not to, then the three defendants reasonably re-
sponded to Starks' acceleration toward [the of-
ficer]. Starks would have threatened the life of a
police officer, and reasonable officers could be-
lieve that the use of deadly force was appropri-
ate.
No. 22-2211 17
Starks, 5 F.3d at 234. Noting that there is no seizure more in-
trusive than one effected by deadly force, we concluded that,
“[i]f a fleeing felon is converted to a ‘threatening’ fleeing felon
solely based on the actions of a police officer, the police
should not increase the degree of intrusiveness. In other
words, we have no countervailing governmental interest in
unreasonable police conduct that would justify a greater in-
trusion on the individual’s rights.” Starks, 5 F.3d at 234.
Aleia contends that Billiot created the danger by leaving
the relative safety of his police car to stand in front of Tousis’s
car, knowing that Tousis’s vehicle might strike him. Accord-
ing to Aleia, under Starks, Billiot unreasonably placed himself
in danger by running toward Tousis’s car and threatening
Tousis with deadly force. Aleia concedes that, if an individual
is driving towards an officer, then the officer is justified in us-
ing deadly force and will be protected by qualified immunity.
Under Starks, she contends, an officer may not step into the
path of the vehicle and unreasonably create the threat that
then justifies the use of deadly force. But her contention is
missing an important word that distinguishes Starks from this
case: Starks hints only that an officer may not step into the
path of a moving vehicle and then justify the use of deadly
force by claiming to be threatened by the use of the car as a
deadly weapon. In this instance, Billiot exited his car to stand
before a stationary vehicle that was initially blocked in by traf-
fic. Billiot did not create the danger; Tousis did when he be-
gan to move forward toward the officer. Starks thus did not
place the constitutional question confronted by Agent Billiot
beyond debate. Plumhoff, 572 U.S. at 779. He was not on fair
notice that the use of deadly force was unreasonable in these
circumstances, and he was therefore entitled to qualified im-
munity. Id.
18 No. 22-2211
Aleia’s attempts to distinguish Plumhoff are equally una-
vailing. She argues that her father had not committed a vio-
lent crime, posed no danger to the public, was stopped in traf-
fic behind two vehicles and a red light, was not driving at high
speed, and was not involved in an active police chase at the
moment the shot was fired. Much of this argument ignores
the undisputed facts. Like Rickard, the fleeing driver in Plum-
hoff, Tousis had fled from the police only minutes earlier by
driving recklessly at speeds in excess of one hundred fourteen
miles per hour, weaving in and out of traffic. As in Plumhoff,
there was a pause in the pursuit and the driver was then
poised to resume flight. By attempting to resume flight, Tou-
sis posed a danger not only to the public but to the officer who
stood in front of Tousis’s car, or so a reasonable officer could
have concluded. Aleia contends that it cannot be conclusively
determined that her father intended to resume his flight, but
that is not the relevant question; the question is whether an
officer in this situation could reasonably conclude that the
driver was attempting to resume his reckless flight. Billiot had
cut off Tousis’s path forward, displayed his rifle and ordered
Tousis to turn off the car and exit. When Tousis ignored those
orders and began to pull forward and to the right where the
lane of traffic was open, a reasonable officer could conclude
that he was attempting to resume his reckless flight. Tousis
had already displayed an alarming disregard for human life
by fleeing at a perilous speed while weaving in and out of
traffic. Nothing in Plumhoff placed Billiot on notice that he
could not use deadly force in these circumstances.
In sum, in the circumstances presented here, Billiot had an
objectively reasonable belief that his own life and the lives of
the public were at risk when he fired the shot that killed Tou-
sis, and there was no case law warning Billiot that his actions
No. 22-2211 19
under those circumstances amounted to excessive force in vi-
olation of the Fourth Amendment. Billiot was therefore enti-
tled to summary judgment on his claim of qualified immun-
ity. We reverse and remand with instructions to enter judg-
ment in favor of Agent Billiot on the basis of qualified immun-
ity for the claim of excessive force.
REVERSED AND REMANDED.