On Appeal from the United States District Court for the District of New Jersey District Court No. 1-04-cv-02476 District Judge: The Honorable Noel L. Hillman
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: McKEE, Chief Judge, and SMITH, Circuit Judges and STEARNS, District Judge*fn1
This civil-rights case was filed after law enforcement officers shot and killed a suspected car thief during a standoff. Immediately prior to the shooting, the suspect had been standing with his right hand concealed in his waistband and appeared to be clutching an object. After being ordered both to show his hands and to freeze, the suspect suddenly pulled his right hand out of his waistband--not as if he were surrendering--but as though he were drawing a gun. The sudden movement prompted the officers to open fire, leading to the suspect's death. The officers fired their guns for 10 solid seconds, shooting a total of 39 rounds. Eighteen bullets hit the suspect, 11 of them from behind. It turned out that the suspect was not clutching a weapon; he was holding a crack pipe.
The administrator of the suspect's estate filed this suit under 42 U.S.C. § 1983, asserting that the officers' use of force was unreasonable and violated the Fourth Amendment. In due course, the District Court granted a defense motion for summary judgment, holding that the officers acted reasonably as a matter of law. To the extent that the District Court held that the suspect's abrupt, threatening movement justified the officers' initial use of deadly force, we agree. However, we conclude that a jury should decide whether the force became unreasonable some time thereafter--i.e., whether the officers should have ceased firing their weapons before they did. Accordingly, we will affirm in part and reverse in part.
The events surrounding the deadly shooting took place shortly after 10:00 p.m. on July 21, 2003. New Jersey State Troopers Christopher Modarelli, Mark Manzo, Keith Moyer, Joseph Carson, and Thomas Hollywood were at the Bellmawr State Police Station when the radio dispatcher reported that local police were in pursuit of a stolen vehicle on Interstate 295 near Route 30. The location is within the Bellmawr station's jurisdiction, so the troopers drove out to the scene. When they arrived, they were advised that the suspect, a white male wearing a white t-shirt, dark sweat pants, and no shoes, had abandoned the vehicle and fled into the woods bordering the interstate. They were also told that local police officer Robert Swanson had gone after him. Modarelli, Moyer, Manzo, and Carson went into the woods to provide backup for Swanson. Hollywood stayed behind.
The woods were dark and dense. The officers needed their flashlights just to see in front of them. At one point, Modarelli stumbled upon the suspect who was hiding under some brush. Modarelli ordered him to show his hands and surrender, but the suspect disregarded the commands and ran away. Modarelli, now joined by Moyer, followed after him. During the chase, the suspect got caught in a thicket.
Trapped, he turned and faced Modarelli and Moyer, who drew their guns. Modarelli and Moyer shouted, "Don't make me shoot you," and (inconsistently) ordered the suspect to show his hands and to freeze. Swanson, Carson, and Manzo heard the commotion and joined Modarelli and Moyer. Manzo unholstered his gun.
The officers were standing between five and eight feet from the suspect, and had their flashlights trained on him. They repeatedly ordered the suspect to show his hands and to freeze. Modarelli, Moyer, and Manzo had their guns drawn and pointed at the suspect. Although facing the officers, the suspect's body was not square. He was standing at an angle, with his right shoulder forward. His left hand was positioned above his forehead (apparently to shield his eyes from the light), while his right hand was tucked into the left side of his waistband and appeared to be clutching an object.
Suddenly, the suspect pulled his right hand out of his waistband, not as if he were surrendering, but quickly and as if he were drawing a pistol. As the suspect made the sudden movement, Modarelli, Moyer, and Manzo opened fire. As the first shots were fired, Carson's flashlight was hit by a projectile (later determined to be a ricochet from one of the troopers' shots), and he fell to the ground. Swanson went to his aid, and after determining that he was unwounded, helped him up. Meanwhile, Modarelli, Moyer, and Manzo continued firing at the suspect. At some point, the suspect turned away from the officers, ...