The case is Thevenin v. French, a summary order issued on March 15. Plaintiff's representative says the officer killed the decedent on a bridge after he refused to be arrested for suspected driving while intoxicated in the course of a low-speed chase. Plaintiff says the victim posed no threat to the police when he pulled the trigger.
Every lawsuit has a defense. In this case, the police say the officer fired the shots because the driver had used his car to pin him between the driver's car and his police vehicle, the officer heard the engine revving, and he thought he was going to die. On the basis of these factual disputes, the district court denied the officer's motion for summary judgment, and the officer appealed, invoking a rare procedure that allows a party to appeal directly to the Court of Appeals when a summary judgment motion is denied. Qualified immunity allows public officials to appeal right away when immunity is denied, in furtherance of the policy that immunity allows the defendant to avoid the lawsuit altogether if, and only if, he deserves immunity.
But a jury must decide what happened here, not a court on a motion for summary judgment. As you can see, factual disputes make it impossible for the court to resolve this case on the cold papers. We need live witnesses to tell the jury what happened. For starters, the law was clearly established at the time of this incident that the police cannot use deadly force to apprehend a fleeing motorist unless the officer has probable cause to believe that force was necessary to prevent a significant threat of death or serious injury to the officer or others. The Second Circuit cites Cowan v. Breen, 352 F.3d 756 (2d Cir. 2003), for that proposition.
While the driver did resist arrest and took off in his car away from the police, the chase ended when the motorist's car hit a concrete barrier. At that point, an eyewitness said, the officer exited his police car and shot the driver 8 to 12 times without saying a word. The witness said the motorist's car was not moving when the officer shot him. The witness also said that, after the shooting, the motorist's vehicle began rolling forward, causing the officer to be trapped between his car and the motorist's car, and the eyewitness helped to free the officer. The Court of Appeals (Leval, Lynch and Bianco) says under this version of the facts the officer can be held liable for excessive force.
An interesting footnote says there are also factual disputes about what happened prior to the shooting, when the officer first tried to arrest the victim. The officer who shot the driver is also dead, by the way. While there are no witnesses who can dispute the officer's version of events prior to the shooting, "plaintiff is still free to argue to the jury that French's testimony as to the earlier events should not be credited based upon other evidence in the record and/or credibility issues that plaintiff asserts exists with French's testimony as a whole." The Court cites Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 150 (2000), for that proposition. Reeves does say that, but you don't see it quoted for that purpose very often.