Courthouse News – by DAN MCCUE
Sheriff’s deputies must face claims related to their shooting of a man who heard possible intruders outside his home and stepped out with a gun to investigate, the 4th Circuit ruled.
The decision notes that George Cooper Sr. had been at the mobile home of his cousin, Paul Herring, on May 2, 2007, in rural Leland, N.C., after they spent the better part of the day repairing the floor of a nearby relative’s home.
Before dinner, the men relaxed in Cooper’s backyard, “talking about ‘[f]ootball games [and] old fights,” Judge Robert King wrote for the three-judge appellate panel.
“Cooper may have enjoyed the mid-spring evening a little too much, smoking marijuana laced with cocaine, and chasing ‘three or four beers’ with a pint of Brandy,” he added.
It was just after 11 p.m. when a neighbor called 911 to report that an altercation was occurring on Cooper’s property. The dispatchers then related the call to Brunswick County Sheriff’s deputies James Sheehan and Brian Carlisle.
Sheehan and Carlisle arrived at the property not knowing whether either of the men engaged in the fight were armed or dangerous. They parked at the edge of the property and, proceeding on foot, could hear what sounded like a heated argument inside.
Cooper said he heard the officers tapping on his window but that they never identified themselves and did not respond when he called out.
He says he then opened the door to his back porch and stepped outside with his 20-gauge shotgun in hand, its muzzle pointed toward the ground.
The officers meanwhile claimed that Cooper had flung the door open, raised the gun up to his hip and fired a shot.
Shots fired by the officers left Cooper with five times or six bullet wounds to his elbow, ankle, back, buttocks and stomach.
He sued in 2010, including claims against Sheriff Ronald Hewett whom Cooper said was forced to resign from office after an obstruction of justice and embezzlement conviction.
The claims against the Sheriff’s Department were quickly dismissed early in the litigation, and the remaining defendants moved for summary judgment on the basis of qualified immunity.
U.S. District Judge James Dever III accepted Cooper’s account of the shooting in the analysis and said the deputies would have to defend the claims at trial.
On appeal, the deputies cited several cases in which police officers were awarded qualified immunity after shooting an individual they mistakenly believed to be armed.
The Richmond, Va.-based panel affirmed Thursday, noting that the precedent cited by the deputies instead emphasize why the use of deadly force against Cooper was not constitutionally permissible.
“In each of the above scenarios, the objective basis for the threat was real, but the gun was not,” King wrote. “Here, the shotgun was real, but – taking the facts as the district court viewed them – the threat was not.
“When the officers fired on Cooper, he stood at the threshold of his home, holding the shotgun in one hand, with its muzzle pointed at the ground. He made no sudden moves,” he continued. “He made no threats. He ignored no commands. The officers had no other information suggesting that Cooper might harm them. Thus, the facts fail to support the proposition that a reasonable officer would have had probable cause to feel threatened by Cooper’s actions.
“Importantly, the officers never identified themselves – even when asked by Cooper. If the officers had done so, they might have been safe in the assumption that a man who greets law enforcement with a firearm is likely to pose a deadly threat. Instead, we are constrained to agree with the district court that ‘no reasonable officer could have believed that [Cooper] was aware that two sheriff deputies were outside,’ as he stepped onto his back porch.”