Fault Lines
13 January 2019
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11th Circuit Panics, Murders Second Amendment

March 17, 2017 (Fault Lines) — The Second Amendment is dead. At least, if you live in Alabama, Florida or Georgia. According to the 11th Circuit, if you answer your front door with a gun, officers may shoot to kill even if they have not announced themselves as police. Even if it’s 1:30 in the morning. Even if you have committed no crime.

The victim in this case, Andrew Scott, was playing video games with his girlfriend late at night. Then, BOOM, BOOM, BOOM. Someone knocked loudly and threateningly on his front door. Scott was a little freaked out, so he grabbed his pistol. He opened the door with the gun by his side, and when he saw a shadowy, armed figure, he began to back away. Then, six more booms.

Andrew Scott was shot three times. Three more shots missed. He fell back on his couch and died, and his estate sued his killer, Deputy Richard Sylvester.

If you’re Andrew Scott’s family, or just a citizen who prefers an accountable government, the outcome seems obvious. Scott was doing nothing wrong. His death was the result of his exercising a core Constitutional right: his Second Amendment right to bear arms in defense of his home. Surely there has to be some remedy.

But the District Court ruled that this “tragedy” could bring no compensation, because Deputy Sylvester’s actions were perfectly reasonable under the Fourth Amendment. The District Court ruled that Sylvester was immune, followed by a panel of the 11th Circuit. And now, the full 11th Circuit has weighed in to deny en banc review. How could such a death be reasonable?

At the District Court, Deputy Sylvester told his own side of the story:

He was patrolling one night when he saw a motorcycle speed past. Over 90 miles an hour, if you trust his estimate. So he tried to follow it, but couldn’t. Sylvester figured he’d spend the night tracking it down, thinking that it might be related to a motorcycle that had been involved in some armed robberies elsewhere in town.

Now Sylvester hadn’t actually seen the color of the motorcycle. And he didn’t know the race, height, build, or gender of the driver. But hunches are how police work gets done sometimes. After Sylvester reported the biker, an officer called in to say that he thought the motorcycle might be in a nearby apartment complex. Another radio message suggested that a motorcyclist with a gun had recently fled from the scene of an assault. Sylvester thought the events were connected. Four officers came to the complex to investigate.

Sylvester got to the parking lot of the complex and saw the bike the other officer identified. Even though couldn’t provide a color, make, or model of the motorcycle before, he was sure that this was the one that had blown by him earlier, because the engine and headlight were warm. It was July. When officers checked the motorcycle’s registered owner, it came out to someone who lived in another city. Same with the car parked next to it. Sylvester figured that the apartment nearest to the two vehicles must contain their owner, although the parking lot had no designated spots. So he decided to “gather information.”

Sylvester proceeded banging on the door. It was so loud that neighbors from hundreds of feet away heard it. A next-door neighbor came out to say that the motorcycle belonged to someone “over there,” pointing to an apartment that was definitely not Andrew Scott’s. Although Scott was taking a while to answer the door, Sylvester never looked to see where the neighbor was pointing.

Scott answered the door. According to Sylvester, Scott threw the door open and pointed a gun at his head, requiring an immediate, split-second decision. When Scott, alarmed, began backing into his house, Sylvester thought he was trying to take cover to begin a firefight. Regardless of whether this subjective belief was reasonable, it was, as the Court noted, a “split-second” decision. He shot and killed Scott.

Of course, there was no reason this had to be a split-second decision. Sylvester could have avoided the situation by announcing he was an officer. Or putting on his car’s emergency lights, so Scott could see who was outside. Or not banging on the door like a maniac.

Anyway, Scott was dead and the District Court had to make a decision. It granted qualified immunity, figuring that the officers were engaged in a “knock and talk” and that there were no cases on point saying that an officer couldn’t shoot under the circumstances, even in the light most favorable to Andrew Scott.

For those not in the know,  officers are allowed to knock on a citizen’s door as long as they don’t exceed the boundaries of what any door to door salesman or Girl Scout might normally do. Here, the Court figured that it wasn’t clear the officers exceeded the boundaries of a knock and talk, because it’s typical for four Girl Scouts to take up tactical positions around your door at 1:30 in the morning, pound your door, and then shoot you when you answer it. As one appellate judge noted in upholding the grant, it’s not like the officers had helicopters.

Literally, that’s the standard. No helicopters hovering overhead. Still, as far as qualified immunity analysis goes, that might be right.

Even though Deputy Sylvester was leaping from one hunch to another. Even though it was one in the morning. Even though he failed to consider that a reasonable person might come to his door armed in response to aggressive late-night knocking. Even though a “knock and talk” is supposed to be a friendly, consensual encounter, and there is nothing consensual about answering your door to find a gun in your face. Deputy Sylvester had qualified immunity because there was no case exactly on point saying that he couldn’t make those choices.

In fact, there still isn’t. He could do the exact same thing tomorrow, and the day after, and there would be no legal consequences. That’s qualified immunity for you.

In theory, this decision is “persuasive authority” only, because the 11th Circuit didn’t actually rule on the case, just whether it should take jurisdiction over it. In reality, of course, departments will use this opinion to reaffirm their current practices. Deputy Sylvester will tell anyone who asks that he didn’t do anything wrong. Legally, he’ll be on firm footing.

Judges Martin, Jill Pryor, Rosenbaum and Wilson wrote a dissent, pointing out that every exigency had been created by the officers, not the “suspect.” And even more importantly, pointing out that it’s tough to square the result in this case with the existence of a constitutional right.

If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.

The right to do something includes the right not to be killed for doing it:

We have never before held that police can, without justification, provoke a panic, and then hide behind it by claiming that “everything happened fast.”

If you can be shot for answering your door in the middle of the night with a gun because you’re afraid you are about to be robbed, then you don’t have the right to bear arms. You have, at best, the hope that no one will murder you for doing it.

Rights enjoyed at the largesse of the government aren’t rights at all, they’re privileges. In the 11th Circuit, you assert them at your own risk.

8 Comments on this post.

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  • DaveL
    17 March 2017 at 10:32 am - Reply

    It was an honest mistake, they were aiming for the Fourth. If Scalia were here, he’d opine it wasn’t even an example of deadly force.*

    *It would count as deadly force against the 4th Amendment, except it is already dead.

    • Greg Prickett
      18 March 2017 at 2:43 am - Reply

      You may want to look at J. Scalia’s opinions in re the Fourth Amendment. He authored Kyllo, Jones, and Jardines. He was the most pro-Fourth Amendment justice on the Court.

      Without J. Scalia, the Fourth Amendment would be in a lot worse shape than it is.

  • Keith
    17 March 2017 at 12:14 pm - Reply

    The absurdity of the imposition of QI here, when the police created the provocation, is amazing.

    The following comes from the respondents brief in County of Los Angeles v. Mendez, which will be argued before the Supreme Court on Wednesday:

    “Respondents asserted “instead” that the deputies’ actions constituted excessive force because they had created the incident that led to the need for force by entering their home in violation of the Fourth Amendment and without identifying themselves as police officers.”

    It will be interesting to see if this case makes an appearance in the arguments.

    If the Supreme Court isn’t willing to do away with qualified immunity, stopping cops from being allowed to assert it after creating the danger would seem prudent.

  • Bacchys
    17 March 2017 at 1:29 pm - Reply

    I wonder if the Court would have considered it reasonable and prudent for Scott to have opened fire through the door?

    • M. Kase
      19 March 2017 at 1:54 pm - Reply

      He might not be dead if that’d been his course of action.

      • Bergman
        19 March 2017 at 2:59 pm - Reply

        He’d probably still be dead, but he’d at least have had a chance to take some of them with him. Police don’t like when peasants resist noblemen, and react accordingly. The court sustem plays along, and convicts anyone who does that of first degree murder or the attempt to commit first degree murder.

        Simply choosing to own a gun is considered sufficient premeditation to support a first degree murder charge, even though it does not meet the legal requirements for that.

  • Bergman
    19 March 2017 at 2:56 pm - Reply

    While private citizens do not have qualified immunity, they do have the right to use deadly force in self defense or the defense of another, when confronted with a deadly force threat. The exercise of this right is subject to legal tests for reasonability and proportionality, but the standards for both are the same for police as they are for any citizen, because police have the right to defend themselves because they are citizens, not because of their employment status.

    Every time a court concurs with a police department finding of no wrongdoing or acting in accordance with department policy and the law in a wrongful shooting, it moves the goalposts on what a reasonable use of force is just a bit further. Since the standard of reasonability is the same for all citizens (and cannot be different under the 14th amendment), if we are not already at a point where it is legitimate and lawful self defense to simply open fire on anyone the least bit suspicious, we’re fast approaching it.

    Given that the threat of terrorism is sufficient danger to justify a war that is and has been burning the middle east to the ground, the fact that the average US cop is about 60 times more dangerous to the average US citizen than a terrorist is means that simply shooting every cop you see is arguably self defense RIGHT NOW.

  • BG
    19 March 2017 at 3:26 pm - Reply

    Is there any “persuasive” precedent (state supreme or fed cir) on the effect that (1) existence of a valid CCW permit and/or (2) actual/constructive knowledge of such permit by LE has on the “subjectively reasonable fear for his life” standard for use of deadly force?

    What about police shooting people who are open carrying in open carry states?

    Anyone with growing paranoia that “activist judges” are destroying the 2nd Amendment might want to start looking over his right shoulder instead of their left.

    I’ll go out on a limb and suggest that it is irrational to disregard the generally applicable “objectively reasonable fear for life” standard in favor of the subjective “standard” on the basis of the killer’s outfit.

    But even a “matching outfits” standard is more reasonable than the “identity of the killer’s employer” standard when applied to plain clothes LE.

    FDR intended his “fear itself” line to inspire courage, not justify drastic actions solely motivated by irrational fear.