I'm a little confused about this one.
The question is whether a police officer used excessive force (and/or is entitled to qualified immunity) when he shot and killed an unarmed person walking on the street. So the facts are important.
Judge Fletcher's opinion does a good job of explaining why, in fact, there was no qualified immunity here. In large part because there was basically no real reason to shoot the victim. He hadn't committed a big offense, wasn't a real threat to escape, wasn't armed or known to be armed, etc.
There's just one part that I don't quite understand.
Judge Fletcher says in the opening paragraph of the opinion that "Villarreal does not
claim that he saw, or thought he saw, a weapon in Herrera’s
hand." That's a pretty big deal. If you shoot someone who's not holding a weapon, and who you know isn't holding a weapon, you're already starting (in my view) in a huge hole in an excessive force suit.
Yet, later on in the opinion, Judge Fletcher says: "Villareal immediately shouted, 'Get your
hand out of your pocket.' Herrera removed his right hand
from his sweatshirt pocket in an arcing motion over his head.
Just as Herrera’s hand came out of his pocket, Villarreal fired
two shots in rapid succession. . . . Officer Villarreal testified in his deposition that he shot
Herrera because he 'believe[ed] that he had a weapon and he
was going to use that weapon on [him].'"
I'm honestly confused.
Maybe what the officer's saying is that, yeah, he didn't actually see a gun in Herrera's hand, but he thought the guy had a gun in his sweatshirt -- which is why he kept his hand in there -- and then when he removed his right hand from the sweatshirt in an arcing motion over his head, the officer thought (mistakenly) there was a gun in there, and that's why he shot.
If that's what the officer's saying, then I can at least understand why he fired. (There's still the question of whether that's reasonable, but at least I can understand why everything went down as it did.)
But that seems inconsistent with what Judge Fletcher said at the outset of the opinion, when he says -- albeit not directly quoting from anything in the record -- that "Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand."
The other way to view the record is to say that the testimony shows that the officer shot the guy because he "thought" he had a weapon in his sweatshirt, albeit not in his hand. If that's indeed what the record reflects, well, duh, there's obviously no qualified immunity on these facts. There's totally no reason to shoot a guy because he just pulled out an empty hand -- a hand you knew was empty -- just because tucked away in a sweatshirt somewhere there might potentially be a weapon that is totally no threat at the present moment.
That's how Judge Fletcher seems to view the record. Or at least the impression I got from reading the facts set forth in this opinion.
Okay. But I just can't fathom that that's actually what the officer said.
Maybe he did. Maybe he honestly said that he didn't see anything in the hand, or think anything was in the hand, but he shot the guy anyway. If so, I totally understand today's opinion.
But is that really an accurate recitation of the officer's story? (Again: Maybe. I simply can't tell from the use of quotations in one area of the opinion but the non-quoted summary at the outset.)
Reading between the lines, is it possible that what the officer's saying was that (1) he didn't actually see a gun (which is what Judge Fletcher says), (2) he didn't actually think he actually saw a gun (which is, again, what Judge Fletcher says), but (3) he nonetheless thought the guy had a gun in his hand once he pulled it out of his pocket?
That last subjective mental state seems important to me. But at least as far as I can tell, Judge Fletcher never discusses it anywhere in the opinion. The best I can find is the factual summary at the outset in which Judge Fletcher says that the officer "does not
claim that he saw, or thought he saw, a weapon in Herrera’s
hand." One way to interpret that, I guess, is to say that the officer admitted that he didn't think there was a weapon in the hand. But a different way to interpret that is to say the the officer admitted that he didn't think he saw a weapon in the hand, but nonetheless thought there was a weapon in the hand. The hand that appears to be rapidly arcing towards him.
But I can't tell from the opinion which of these two things Judge Fletcher is saying. Or that, critically, the actual record reflects.
Again, I'm not saying the shooting here was necessarily justified. But it's a far different case, in my view, if you shoot someone who just whipped towards you what you know is an empty hand as opposed to if you shoot someone who just whipped towards you a hand that you think -- maybe reasonably, maybe not so reasonably -- holds a gun.
If a guy points his fingers in the shape of a gun towards you, but you knew they're fingers, you obviously can't shoot him. But if a guy points his fingers in the shape of a gun towards you, and you think his fingers are a gun -- or holds his hand in a fist that you think holds a weapon, even though you can't "see" one -- well, that's an entirely different case, right?
I think that Judge Fletcher is saying that this case involves the former hypothetical. But I can't tell for sure if that's indeed Judge Fletcher's understanding. Or whether, his understanding or not, that's actually this case.
So I'd like to see the actual record on this point quoted. 'Cause it sure seems important to me, at least, whether the officer admitted that he didn't see or think he saw a weapon, versus whether he admitted that he didn't see or think there was a weapon in the victim's hand.
A pretty big distinction.
