The residence of Fred and Kitti Bletz, where Fred was shot.
FEATURED IN TRAINING
Recently, a federal district court in Michigan denied police officers summary judgment in a civil lawsuit stemming from a shooting.1 This case serves as a useful reminder that officers must be able to articulate the basis for the use of deadly force and for detaining witnesses of the shooting or other individuals who were on scene.
On May 3, 2005, two police officers went to the home of Fred and Kitti Bletz for the purpose of arresting their adult son, Zach, on an outstanding arrest warrant for misdemeanor drunk driving. The warrant erroneously stated that Zach resided at the Bletz home. Coincidentally, Zach was visiting his parents that night.
Shortly before midnight, the officers arrived at the house. No lights were on except for in the second-floor bedroom. The officers pulled into the driveway with their headlights off and parked their vehicles about 35 feet from the entrance to the home.
The officers knocked on the door. After hearing his parents’ dog barking, Zach went to the door. After confirming Zach’s identity, the officers informed him that they were there to arrest him on the outstanding warrant. The evidence was undisputed that Zach was cooperative with officers. Zach asked if he could go back into the house to retrieve some shoes. The officers allowed him to do so and asked him to restrain the dog so they could accompany him into the house. Zach went to the kitchen door to do so.
In the meantime, officers saw a person through the kitchen window. Unbeknownst to them, it was Zach’s father, Fred. One of the officers clicked his flashlight on and off at the window to get Fred’s attention. However, Fred moved away from the window.
Shortly thereafter, one of the officers observed the “unknown” man through the open kitchen door in his underclothes, pointing a gun at him. The officer shouted, “gun” or “he’s got a gun!” The second officer shined the flashlight at Fred and ordered him to put the gun down. Unfortunately, and again, unbeknownst to the officers, Fred had poor vision and hearing and was not wearing his glasses and hearing aids at the time of this encounter. Apparently, not knowing the officers were actually police officers, he asked who they were. One of the officers claims to have shouted “sheriff’s department,” although the other officer didn’t recall ever hearing that. Nonetheless, the second officer never identified himself as a police officer. When Fred failed to immediately drop his weapon, the first officer fired four shots at him. Fred never fired his gun. It was later ascertained that the gun wasn’t loaded.
The shooting officer stated that he fired at Fred because he pointed his weapon directly at the officer, but Zach claimed his father was lowering his weapon when the shots were fired. Immediately thereafter the officers entered the kitchen and handcuffed Zach, who was already lying face down on the kitchen floor. Fred’s wife, Kitti, who was awoken by the commotion, was handcuffed when she came out to the dining room. The officers removed Zach and Kitti from the house and placed them in separate locked squad cars outside the home. They remained handcuffed and in police custody for approximately three hours. They were later transferred to the custody of Michigan State Police and then released from custody later that night.
Kitti Bletz filed a lawsuit against the officers for violating her rights under the Fourth Amendment and the rights of her deceased husband. Following discovery, the defendant police officers filed a motion for summary judgment, asserting that they were entitled to qualified immunity.
Qualified immunity shields police officers from liability under federal law when their conduct doesn’t violate clearly established statutory or constitutional rights of which a reasonable person would have known. However, if the evidence (viewed in the light most favorable to the plaintiff) would allow a reasonable jury to find that the officers violated the Bletzs’ clearly established constitutional rights, the officers aren’t entitled to qualified immunity.
There is no dispute that Fred was “seized” within the meaning of the Fourth Amendment when he was shot. However, the officers asserted that the seizure—or shooting—was objectively reasonable because Fred had pointed a weapon at them. The court reminded the defendants that the Fourth Amendment allows officers to use deadly force to protect themselves from great bodily harm or death. But it also stressed that the Fourth Amendment “does not grant [an] officer a license to kill with impunity whenever he encounters an armed person, regardless of the circumstances of the encounter.”2
According to the court, “it is not enough to simply assert that, at the precise moment [the officer] pulled the trigger, Fred Bletz held a weapon in his hand.”3 Instead, the court would look at the totality of the circumstances to determine whether the officers’ actions were objectively reasonable. Because there was a dispute as to whether Fred was lowering his weapon at the time of the shooting, the court could not grant the officers qualified immunity as a matter of law. Instead, this issue would have to be resolved by a jury at trial.
Like Fred, there is no question that Kitti was seized within the meaning of the Fourth Amendment when she was handcuffed and placed in the back of a locked squad car for three hours. The officers assert that although they had no reasonable suspicion or probable cause to believe that Kitti was involved in a crime, their actions were reasonable because they needed to secure the scene of the shooting and conduct an investigation. The court found that the officers’ assertion implied that Kitti posed a threat to their safety or that she attempted to interfere with the investigation. However, there was no evidence in the record to support that.
According to the court, police officers executing a valid search warrant are permitted to briefly detain occupants of the home without reasonable suspicion of criminal activity.4
However, the defendant officers claim that Michigan v. Summers allows officers “unfettered control of the situation when executing their lawful enforcement responsibilities.”5 Not so. According to the court, the holding in Summers “is meant to protect the integrity of the search, minimize the risk of flight in the event incriminating evidence is found and ensure officer safety during the search.”6 Nothing in Summers allows police officers so-called “unfettered” discretion in conducting their business.
In this case, the court found there was nothing in the record that suggested Kitti posed a safety risk to the officers or that she in any way attempted to interfere with their investigation. It went on to say that even if the officers may have perceived a safety risk, it certainly would have “dissipated as time went on and they secured the scene of the shooting and recovered Mr. Bletz’s gun. Defendants did not even attempt to explain why Ms. Bletz needed to remain handcuffed for three hours.”7
In sum, the court denied the officers’ qualified immunity, thereby leaving the issues for the jury to decide at trial.
This case is an excellent reminder that officers need to understand why it is that they do the things they do. It’s simply not enough for officers to believe that the law will “back them up.”
Although it’s true police officers are permitted by law to shoot at a suspect who’s armed with a weapon, it’s not enough for officers to assert that the suspect possessed a weapon. In such situations, officers must also reasonably believe that the suspect poses a threat of great bodily harm and/or death to the officers and/or others. As such, police officers must ensure their reports and any subsequent statements clearly demonstrate the shooting was based on something more than “the suspect possessed a weapon.”
Officers also find themselves in a predicament when they take individuals, like Kitti Bletz, who are not suspected of a crime but are also present at the shooting scene “into protective custody.” Surely, it makes sense for officers to do so if their safety is in jeopardy and/or the individual is in a position to interfere with the police investigation. However, officers must be aware that at some point they need to remove the handcuffs from these individuals and release them from “protective custody.”
Unfortunately, the time frame for when this should occur isn’t well marked. Often, these individuals end up being forgotten about until an officer happens to walk by the squad car or holding room at the station house and asks who the person(s) is/are. However, common sense should prevail. That is, once it becomes clear officer safety is not an issue, and/or the scene of the shooting is secure and the individual can’t get through the line of officers protecting the scene, police officers shouldn’t continue to detain the person. To do otherwise can result in officers being accused of false arrest.
Laura L. Scarry is a partner in the law firm of DeAno & Scarry with offices located in Wheaton and Chicago, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986–1992. Contact her at email@example.com.
1. Bletz v. Gribble et al., No. 08 CV 533, 2009 WL 2132729 (W.D. Mich. July 10, 2009)
2. Id. at *5.
4. Id. at *8 (citing Michigan v. Summers, 452 U.S. 692 ).
7. Id. at *9 (citing to Muehler v. Mena, 544 U.S. 93, 103  [Kennedy J. concurring] [handcuffs should “be removed if, at any point during the search, it would be readily apparent to an objectively reasonable officer that removing the handcuffs would not compromise the officers’ safety or risk interference or substantial delay in the execution of the search.”]).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.