The son dies and the parents are arrested: no case

Wrongful death cases against the police are difficult to win for a number of reasons. First, the victim is dead and therefore cannot contradict police accounts of what happened. The plaintiff's relatives -- who bring the lawsuit on his behalf -- may not have any witnesses who can support the argument that the police acted in haste. Second, it's usually (let's face it) difficult people who get into a shootout with the police. Juries like the police and dislike troublemakers on the street. Of course, all this assumes the case reaches the jury. It may not.

The case is Fortunati v. State of Vermont, a summary order decided on November 26. The police shot and killed Joseph Fortunati while attempting to take him into custody. His family sought a jury trial because of a factual dispute over whether Joseph pulled a gun on the police before they opened fire on him. There are some factual disputes in the record, but not enough to undercut as a matter of law the police's argument that they had no choice but to pull the trigger. The Court of Appeals (Jacobs, Pooler and Hall) says,

None of the small differences in testimony Plaintiffs cite creates a genuine dispute as to whether Joseph aggressively drew or reached for his gun immediately prior to being fired upon by the TSU team members. Some officers were able only to see Joseph reach for his waist, but small differences in testimony simply do not rise to the level at which a reasonable jury could find the officers’ credibility damaged. The district court was therefore correct to conclude that there was no genuine dispute of material fact as to the credibility of the officers.

The record also shows that two of the officers shot at Joseph. Here's where the qualified immunity kicks in. Qualified immunity gives police officers the benefit of the doubt in close cases. So that even if the officers violated Joseph's rights, they acted reasonably under qualified immunity. "The Troopers understood Joseph to either be armed or in close proximity to the gun he had brandished hours earlier. The intervening nine hours did not diminish the danger Joseph posed to police and the surrounding community. Thus, the use of non-deadly force by the Troopers who deployed the bean bag ammunition against Joseph meets the objective reasonableness test."

Joseph's parents also sued the police for false arrest after the police detained them for 45 minutes in the aftermath of their son's death. Again, on paper, the police violated their rights in detaining the parents (it does not look as if the parents were charged with any offense). But the police acted objectively reasonably, at least in the eyes of the Court of Appeals:

The encounter was tense; it took place at a crime scene; and the officers had reason to believe that Robert might be armed. The officers were undoubtedly aware that the Fortunati family would be upset over Joseph’s death, and they could also reasonably protect against disruption of the scene of the shooting and interference with their investigative duties. It was therefore objectively reasonable for Defendants to believe that Susan and Mark’s detention did not rise to the level of an arrest, notwithstanding that they may have been detained for a period of up to forty-five minutes after Robert had been taken into custody.