Appeals Court Says A Cop Can Violate Another Cop’s Rights By [Squints At Ruling] Shooting At The Other Cop

Legal Issues

from the blind-panic-is-apparently-part-of-the-'training-and-expertise' dept

It’s a fact: You can violate a government employee’s rights while being a government employee. Sure, it’s more tricky than violating rights as a government employee (when targeting non-government employees), but it can still be done.

Constitutional protections are a bit more limited for government employees, but they don’t cease to exist. Every American has access to these rights, even if they’re employed by the entity that can far more easily curtail the rights of others.

Most of the cases we’ve dealt with here at Techdirt involve First Amendment cases where public employees have been punished/silenced for speech made off the clock. Whether or not the speech could be considered an extension of the government weighs heavily in these cases. But even government officials have the First Amendment right to say things (often ill-advised things) while acting as private citizens.

But we don’t often see Fourth Amendment lawsuits where the plaintiff and the defendant are both law enforcement officers. And we certainly don’t see many where both parties work for the same law enforcement agency. And I don’t think we’ve ever seen one where a cop has sued another cop for being shot by the other cop. I mean, one assumes a certain risk as an officer. But how much risk should be assumed?

That being said, this makes for a hell of a case. It’s not often litigation ensues following cop-on-cop violence, but here’s one for the record books. (But not the actual record books, since it’s an unpublished opinion, which means it isn’t precedential.)

Welcome to the Sixth Circuit, where cop-shoot-cop is the cause of action. The narrative [PDF] relayed by the judges is a hell of a read:

On July 20, 2020, [Jennifer] Kilnapp and [Bailey] Gannon, both Cleveland police officers, responded to a call reporting that there was an emotionally disturbed man with a gun in a boarding home. Gannon was a rookie, and Kilnapp was his field training officer. Upon arrival on the scene, Kilnapp and Gannon learned that the disturbed man, Darryl Borden, was in the second-floor bathroom, and they proceeded up the stairs to the hallway to confront him. Gannon stood by the bathroom door while Kilnapp stood a few feet behind him. Gannon opened the bathroom door and Borden was allegedly “holding a firearm but it was down at his side in one hand, pointed towards the ground. It was not raised or pointed at Gannon.”

Seems like things were mostly under control. But as we all know, cops are trained to respond like tiny woodland creatures (albeit heavily armed tiny woodland creatures) to any perceived danger. Panic is S.O.P. Measured responses are best left to TV screenwriters.

Gannon was a rookie, which might sort of explain his actions moments into this interaction. Kilnapp was a veteran and presumably stated she was “too old for this shit” moments after this interaction.

Let’s read on!

According to the complaint, despite the fact that Borden did not threaten or step toward either officer, Gannon “panicked” and “spun back out of the doorway, where he was no longer in the line of sight or fire between himself and Borden.” Gannon did not make any commands for Borden to get on the floor, proceed out of the bathroom, or drop his weapon, and Borden remained in the bathroom while Gannon retreated. During this time, Kilnapp was standing “near the top of the staircase.” “As [Gannon] ran, [he] pointed his gun over his head behind him—in the opposite direction he was running—and began shooting.” Gannon was purportedly “not looking where he was shooting.” After Gannon’s shots, Borden fired his gun.

Oh my. Truly a classic response to a perceived threat: “So anyway, I started blasting.” Not good cop work and not even good everyday vigilante work. Maybe this would have just been swept under the Cleveland PD’s massive rug, but Gannon fucked up in the worst way: he shot another cop.

Kilnapp supports her allegation that Gannon fired first by pointing to the trajectory tracing and audio testing of Gannon’s body camera. Kilnapp was hit in the right forearm by one of Gannon’s fired bullets, and the bullet fragmented and punctured her bicep; Kilnapp was also struck with a bullet in her armpit which traveled through her chest to near her spine. Kilnapp was able to exit the home on her own, and was taken to the hospital where surgeons were able to remove the bullet fragment near her spine.

Officer Kilnapp’s allegations were partially confirmed by a Bureau of Criminal Investigations examination of the shooting. The BCI determined Gannon “must have been holding his gun above his head” when he opened fire. It also determined any bullets fired by the barricaded man (Borden) could not have possibly struck Kilnapp since she was never conceivably in his “range of fire.” Neither was there any body cam footage that showed any remote possibility Borden’s shots could have struck Kilnapp.

Despite these findings — and despite Officer Gannon’s own admission some of his fired shots “inadvertently struck” Kilnapp — city prosecutors charged Borden with attempted murder. Which is some bullshit.

But that’s neither here nor there in terms of this litigation. Borden has his own case on his hands but this one is about Officer Kilnapp being wrongfully shot by a fellow officer. And those allegations actually involve the US Constitution, rather than just vague claims the Cleveland PD will provide incoming officers with additional training before setting them loose on the city.

And that’s what turned Kilnapp against her own employer — and indeed her own professional interests as a law enforcement officer: the willingness to scapegoat some random person rather than actually punish a cop who endangered the life of another cop.

Kilnapp alleges that the Cleveland division of police and the prosecutor’s office falsely reported that Borden intended to ambush the officers from the bathroom, and that they continued to claim that Borden shot Kilnapp, despite BCI modeling, ballistic testing, and body camera footage that established that this narrative was not true.

On top of that, the Cleveland PD decided it was the shooting victim who needed to be punished, rather than the shooter.

In March of 2021, the Cleveland chief of police suspended Kilnapp for neglecting to turn on her body camera before entering the house on the day of the shooting. According to Kilnapp this type of infraction typically results in counseling, not suspension. Meanwhile, Gannon faced no consequences for providing a misleading description of the events that occurred on the day Kilnapp was shot, nor for mishandling his firearm. Kilnapp was unable to return to work for two years and is no longer a full-time patrol officer.

While I do applaud the Cleveland PD for taking a tough stance on body cam activation, it appears this punishment was put in place to shut Kilnapp up, rather than actually ensure better accountability. After all, Gannon deserved punishment too for his extremely ill-advised actions and yet, it was the cop he shot that ended up both insulted and injured.

All of that dovetails into a discussion of issues that rarely reaches the appellate level: can a cop violate another cop’s constitutional rights? And if they can, is there enough on-point precedent to deny qualified immunity?

The answer to both questions is yes, says the Sixth Circuit Appeals Court in this decision. But since it’s unpublished, it doesn’t actually count as precedent, so cops may be able to find new ways to violate the rights of other officers with careless deployments of deadly force. Kilnapp wins, but it’s going to remain an anomaly.

Gannon argues that because the firing of his gun was not intended to hit Kilnapp, and because Kilnapp was not subject to his intended seizure, a Fourth Amendment seizure of Kilnapp is not established. This is an incorrect interpretation of the law.

[…]

Kilnapp’s status as a police officer does not remove her from the protections of the Fourth Amendment; she qualifies as an unintended target. In this case, Gannon fired his gun intentionally to seize Borden. However, as a result of his actions, Gannon shot Kilnapp who was an unintended target. (Id.). If Kilnapp alleged that Gannon’s gun had fired by accident, then our analysis would differ.

[…]

In this case, Kilnapp does not allege that Gannon accidently shot his gun; based upon the allegations in Kilnapp’s complaint, the shooting of the gun was intentional, the individual that fell into contact with the bullet was unintentional. As discussed above, an unintentional victim is protected under the Fourth Amendment. Accordingly, Kilnapp properly alleged seizure under the Fourth Amendment. To hold otherwise would ignore binding Supreme Court precedent.

Everything about Gannon’s actions was unreasonable — something solidly alleged by Officer Kilnapp and backed by body cam footage (albeit none of hers) and the results of a BCI investigation. There’s also Gannon’s own admission he accidentally shot Kilnapp. All of this adds up to a rights violation that cannot be forgiven by the application of qualified immunity.

Viewed in that light most favorable to Kilnapp, Gannon acted unreasonably by blindly deploying a firearm over his head when no suspect was in pursuit of him. Based on Kilnapp’s allegations, Borden remained in the bathroom, while Gannon ran downstairs and deployed the first shots from his firearm. A factual dispute may exist as to the timing of when the weapons were used, as Borden also deployed his weapon during the incident; however, at this stage of litigation, the Court takes the facts as alleged in the complaint as true. Further, Kilnapp can be construed to serve as a proxy for a reasonable officer; she stood beside Gannon during the same incident, without firing her weapon or fleeing.

If officers want to be called “reasonable” by courts, they need to do “reasonable” things. It was reasonable for Kilnapp to hold her fire. It was clearly unreasonable for Gannon to run away from the bathroom while firing blindly behind him. He can’t claim that response was reasonable when another officer at the same scene did nothing remotely comparable to Gannon’s bizarre combination of the fight-or-flight response. The case moves forward. Gannon is still — for the moment — potentially on the hook for shooting his training officer because he panicked when he should have remained professional.

Filed Under: 4th amendment, 6th circuit, bailey gannon, cleveland, cleveland pd, jennifer kilnapp, police