John M. Baker and Katherine M. Swenson

A recurring question in §1983 cases is whether unarmed, fleeing suspects pose the requisite threat to officers or others to justify the use of deadly force. Related questions include whether qualified immunity is available in such cases at the summary-judgment stage, or whether a jury must be permitted to weigh the participants' credibility, which provides a chance to influence the answer to the question of what constitutes an objectively reasonable use of force.

A recent Eighth Circuit decision embodies conflicting views on this subject.

In Davdrin Goffin v. Robbie Ashcraft et al., No. 18-1430 (8th Cir. April 24, 2020), Mr. Goffin was fleeing arrest for burglary and theft. Police officers for the City of Warren, Arkansas, seized Goffin and conducted a search of his person. While Goffin was being handcuffed, he broke free, and Officer Robbie Ashcraft shot him once in the back. As the panel majority opinion explained, "Goffin claims (and Officer Ashcraft disputes) that he was patted down by another officer just before he fled." At the time of the pat-down search and the shooting, Goffin did not have a gun—although after the shooting officers learned that "Goffin was carrying a loaded magazine and extra bullets." Emphasizing that Goffin did not have a weapon and that Officer Ashcraft was aware before she used deadly force that he had been patted down without detecting a weapon, Goffin's counsel argued that Officer Ashcraft was not entitled to qualified immunity at the summary-judgment stage because there was a clearly established right not to be subjected to deadly force in the absence of probable cause that Goffin posed a significant threat of death or serious physical injury to the officer or others.

The crimes Goffin was suspected of committing involved the theft of handguns, ammunition, and prescription pain medication. A witness told Officer Ashcraft that Goffin had threatened him "and then displayed two guns that matched the descriptions of" the stolen pistols. Goffin was spotted while seated in a car in front of a nearby body shop, and two officers (including Officer Ashcraft) responded to the scene. In response to the officers' commands, Goffin put up his hands and exited the vehicle. The officers escorted Goffin to the back of the vehicle. There, according the panel majority, "Officer Ashcraft claims she saw something 'bumping in [Goffin's] right front pocket," although Goffin denies there was anything in that pocket. Goffin claims that, at the back of the vehicle, the other officer patted him down and "searched every part of [his] body," including feeling for items in the pockets and around his waist, but did not go into his pockets or remove anything from his body.

As the other officer started to handcuff Goffin, Goffin started to flee. "With his back to the officers, he raised his right shoulder, which Officer Ashcraft interpreted as a reach for something in his pocket or his waistband. She then shot him once in the back." The ensuing investigation showed that the guns Goffin was suspected of stealing were in the car where Goffin had been seated, and that he was unarmed when Officer Ashcraft shot him. Despite Goffin's testimony about a pat-down search, after the shooting officers found "a loaded 9mm pistol magazine and several loose bullets" on his person.

Goffin survived the wound and sued (among others) Officer Ashcraft, the city, and its mayor, alleging an excessive use of deadly force. District Court Judge Susan O. Hickey held that Officer Ashcraft's use of deadly force was objectively reasonable, and dismissed claims against the other defendants because a viable constitutional claim was not present. Goffin appealed.

Even though the district court decided the case on the merits of the constitutional question, the Eighth Circuit affirmed that ruling solely based on Officer Ashcraft's qualified immunity. The majority opinion, written by the Eighth Circuit's newest member, Judge Jonathan Kobes, joined by Chief Judge Lavinski Smith, recognized that at the time the officers initially confronted Goffin, "Officer Ashcraft objectively and reasonably believed that Goffin was dangerous." (This belief was based on information known to Officer Ashcraft that Goffin had lost a gun on an earlier occasion when fleeing police, "strong evidence that he had recently stolen two more," and reports of Goffin's threatening behavior earlier that day.) In Judge Kobes' words, "[t]he case turns on whether the pat down changes our analysis."

Viewing the question as a legal one, the majority required Goffin to "provide a case clearly establishing that a pat down that recovered nothing eliminated Officer Ashcraft's objectively reasonable belief that he was armed and dangerous." Because Goffin offered no case decided before the shooting that fit that description, and Goffin had attempted to flee and moved as though he was reaching for a weapon, the Eighth Circuit agreed with the district court that Officer Ashcraft was entitled to qualified immunity.

Although the majority opinion rested in part on Officer Ashcraft's testimony that Goffin moved as if he was reaching for a weapon, it does not explain why her belief that Goffin was reaching for something in his pocket or his waistband would be objectively reasonable if, as the court was required to assume, a pat-down search observed by Officer Ashcraft before the shooting had revealed no weapon in Goffin's possession.

In dissent, Judge Jane Kelly noted that since 1985 "the use of deadly force against a fleeing suspect who does not pose a significant threat of death or serious physical injury to the officer or others is not permitted." Moore v. Indehar, 514 F.3d 756, 763 (8th Cir. 2008). Although two guns were found in Goffin's vehicle after the shooting, Officer Ashcraft never saw a weapon in Goffin's possession. Giving the non-movant (Goffin) the benefit of all reasonable inferences, Officer Ashcraft "saw that the pat down revealed no weapons of any kind." Even acknowledging that Officer Ashcraft "thought Goffin might have been reaching for a weapon," and that "[a]n act taken based on a mistaken perception or belief" does not necessarily violate the Fourth Amendment if it is "objectively reasonable," Judge Kelly concluded that "a jury could find that a reasonable officer would not have believed Goffin posed a threat of serious physical harm to the officer or others," and that the officer's actions were therefore not objectively reasonable. Judge Kelly disagreed with the majority that Officer Ashcraft was entitled to qualified immunity absent a prior case containing "the exact factual circumstance here: a pat down before the suspect fled."

The Eighth Circuit's affirmance of the district court's ruling reflects one misunderstanding of constitutional litigation that was not mentioned in either the majority opinion or the dissenting opinion. Because the district court held that there was no constitutional violation, it followed automatically that Goffin's remaining federal claims—his municipal-liability claim against the city and his supervisory-liability theory against the mayor—were also invalid. But on appeal, the majority elected to affirm the entire outcome without addressing whether there was a constitutional violation. Instead the majority focused solely on whether Officer Ashcraft was entitled to qualified immunity. As the Supreme Court has repeatedly held, actions by an official entitled to qualified immunity can, in theory, give rise to municipal §1983 liability, but there must also have been, among other things, a constitutional violation. See, e.g., Monell v. N.Y. City Dep't of Social Servs., 436 U.S. 658, 692 (1978). Thus, once the Eighth Circuit affirmed the outcome of the §1983 claim against Officer Ashcraft based solely on qualified immunity without also ruling on the merits, a ruling in favor of the city and its mayor no longer followed automatically. The majority needed to have either reached the merits of the constitutional question and agreed with the district court on that issue, or reached questions not addressed below about whether there were other defects in Goffin's supervisory-liability and municipal-liability claims that could serve as a basis to affirm that outcome.

John M. Baker and Katherine M. Swenson are attorneys at Greene Espel PLLP in Minneapolis.