Appeals Court: No Immunity For Shooting A Man Who Had His Hands Up And Twice Said He Surrendered
from the muh-safety dept
By the time some qualified immunity cases hit the appellate level, there’s an air of “why are we even discussing this” about them. But if there’s even a 1% chance the next level of review might overturn a lower court ruling, the cases will addressed, no matter how obvious their conclusions.
This is one of those cases. In this one, it’s a police officer needing to hear one more time that the shit they pulled just isn’t legal. It started with a parking ticket and ended with the ticketee being shot by a police officer. In between, there was a misunderstanding and an altercation. And, after this review, the odds are even lower that the officer is going to be able to talk a judge or jury into excusing his actions. Here’s the backstory:
Craig Strand, a truck driver, needed to take a mandatory drug screening. Since he was unable to fit his truck in the testing facility’s parking lot, he obtained permission to park it at a nearby Planned Parenthood office. Officer Curtis Minchuk, who was providing security for Planned Parenthood while in uniform and with the blessing of his department, saw Strand’s truck and left two parking tickets on its windshield.
Strand returned to his truck and saw the tickets. He returned to the Planned Parenthood office to inquire about them and was directed to meet Officer Minchuk in the parking lot. Strand explained he had received permission to park there. This is where things went downhill for Strand, his rights, and his as-of-yet unwounded body.
From the decision [PDF]:
Minchuk had no interest in discussing the tickets beyond, as the district court observed, allegedly soliciting a bribe from Strand.
Let’s pause there for effect. Officer Minchuk didn’t want to be right. He wanted to be paid. Any explanation Strand offered would have been ignored. Strand realized this and made preparations to leave, but not before gathering a little exculpatory evidence.
After Strand declined to pay, Minchuk drove to the back of the Planned Parenthood facility. Strand started his rig, but before driving away used his cell phone to take pictures of the parking lot, thinking he might need them to show the absence of no?parking signs to contest the tickets.
In response to this non-threatening (at least to Minchuk’s life, but perhaps not his livelihood), the officer decided to thug out.
Observing from a distance, Officer Minchuk returned to the truck and ordered Strand to leave immediately. Strand said he would leave as soon as he finished taking pictures. Minchuk responded by saying he was calling a tow truck and telling Strand he had two minutes to leave.
The situation then escalated. Stepping toward Strand, Officer Minchuk admonished, “I told you to get the f*** outta here,” and slapped Strand’s cell phone to the ground. Minchuk then demanded Strand’s identification; Strand refused and countered by demanding Minchuk’s badge number. Minchuk replied, “I said, give me your I.D.” and grabbed Strand by his shirt and neck, resulting in Strand’s shirt tearing off his body. Minchuk attempted to push and tackle Strand to the ground, with Strand resisting by holding on to Minchuk’s arm.
According to Officer Minchuk, Strand got the upper hand. The officer was punched three times before being grabbed by the throat. Minchuk claimed he feared for his life and that, if he passed out, Strand would take his gun and shoot him.
But that’s not what happened. Strand decided to disengage and de-escalate.
The fist fight ceased when Strand stood up, backed four to six feet away from Officer Minchuk, put his hands up, and said, “I surrender. Do whatever you think you need to do. I surrender, I’m done.”
Of all the possible ways Officer Minchuk could have reacted to Strand’s capitulation, he chose the worst:
While still on the ground, Minchuk responded by removing his gun from its holster and firing a shot at Strand, striking him in the abdomen.
The lower court denied Minchuk qualified immunity. It pointed to unresolved facts that prevented it from dismissing the case at this point. Minchuk stuck to his “feared for my safety” guns to explain his use of his actual gun, but the record shows only 21 seconds passed between Minchuk calling for backup and the 911 call reporting the shooting, which was placed by a Planned Parenthood employee. This strongly suggests Minchuk performed no reassessment of the situation after Strand stood up, walked away, put his hands up, and (twice) said he surrendered.
The appeals court won’t be extending qualified immunity to Officer Minchuk either. It makes several good points, the first of which deals with Strand’s apparent surrender. If officers are justified in shooting surrendering suspects, this leaves arrestees zero options to avoid being shot. That’s an obviously ridiculous outcome.
Officer Minchuk resorted to the use of deadly force at a time when Strand had stopped fighting, separated from Minchuk, stood up, stepped four to six feet away from Minchuk, and, with his hands in the air, said, “I surrender. Do whatever you think you need to do. I surrender, I’m done.” The record shows that Strand was unarmed at all points in time. Furthermore, upon standing, raising his hands, and voicing his surrender, Strand never stepped toward Minchuk, made a threatening statement, or otherwise did anything to suggest he may resume fighting or reach for a weapon.
But that’s not everything Minchuk did wrong. Minchuk is the one who provoked the situation to the point it turned into an altercation. He doesn’t get to pretend someone leaving a parking lot after receiving parking tickets is an inherently dangerous situation requiring the use of deadly force.
Recall, too, the broader circumstances that led to the shooting. The police were not in hot pursuit of an individual known to be armed and dangerous. Nor had the police responded to a report of violent crime or otherwise arrived at a location only to find an individual engaged in violent or menacing conduct or acting so unpredictably as to convey a threat to anyone present.
To the contrary, the entire fracas leading to Officer Minchuk’s use of deadly force began with his issuance of parking tickets. After Strand declined to make an on?the?spot cash payment and instead sought to take pictures to show the absence of no?parking signs, Officer Minchuk allowed the situation to escalate and boil over by slapping Strand’s cell phone to the ground and then tearing Strand’s shirt from his body.
As the court points out, this isn’t even a difficult call. Any reasonable jury would find Minchuk’s shooting of Strand to be a Fourth Amendment violation. Shooting someone is seizing someone, depriving them of their liberty and, quite often, their life.
The Fourth Amendment does not sanction an officer—without a word of warning—shooting an unarmed offender who is not fleeing, actively resisting, or posing an immediate threat to the officer or the public.
This doesn’t mean Minchuk won’t ultimately be granted immunity, but it seems very unlikely the remaining disputed fact — the amount of time that passed between Strand walking away from the fight and putting his hands up, and Minchuk’s shooting of the surrendering Strand — would push a jury (or a judge) to find in favor of the officer. But the appeals court can’t make the final determination until this factual dispute is resolved. The case is remanded to the lower court, but the appellate decision includes this passage, which throws a bunch of cold water on Minchuk’s QI hopes.
Factual disputes do not resolve on the force of say so, however. What Officer Minchuk sees as undisputed—whether Strand continued to pose a threat at the moment Minchuk deployed deadly force—is actually unresolved and indeed vigorously contested by Strand. For Minchuk to prevail at this stage, the record must show that he fired while Strand still posed a threat. Instead, the record shows that Strand had backed away, voiced his surrender, and up to five, ten, or fifteen seconds may have elapsed while Strand stood with his hands in the air.
Officer Minchuk screwed up. And he should get the chance to pay for it. According to the facts of the case, he turned two parking tickets into a shooting by being as much of an asshole as possible every step of the way. And he topped it all off by shooting someone who had their hands in the air and had twice stated they surrendered. That’s garbage police work that doesn’t deserve the immunity he’s seeking.