Police Sidearm

Feb. 15, 2021 – The U.S. Court of Appeals for the Seventh Circuit has ruled that a jury must decide whether a Wisconsin police officer’s actions were objectively reasonable when he fired four shots into a vehicle, killing one of the vehicle’s occupants.

East Troy Deputy Juan Ortiz fired four shots into a vehicle from 50 feet away, killing Christopher Davis. The incident occurred as part of a drug bust. Davis was a passenger in a Pontiac suspected of carrying cocaine for delivery in a restaurant parking lot.

When police arrived in a marked car, the Pontiac pulled out and headed for the exit. That’s when Deputy Ortiz fired four shots at the vehicle. Davis’s estate subsequently filed a lawsuit, arguing Ortiz’s use of deadly force was unreasonable.

The estate sought damages under 42 U.S.C. section 1983, alleging Deputy Ortiz used excessive force in violation of the Fourth Amendment and the violation caused Davis’s death. Deputy Ortiz argued that he had qualified immunity from the lawsuit.

The district court rejected Ortiz’s motion for summary judgment, concluding the qualified immunity issue must be decided after a jury resolves disputes on issues of material fact.

Ortiz appealed that decision. But in Estate of Davis v. Ortiz, No. 19-3355 (Feb. 5, 2021), a three-judge panel for the Seventh Circuit Court of Appeals ruled that “this appeal must be resolved by the trier of fact” and dismissed the appeal for lack of jurisdiction.

The district court found that a reasonable jury could conclude that Ortiz used excessive force, if the jury accepted the estate’s evidence over the evidence presented by police.

On appeal, the three-judge panel noted that officers are not entitled to qualified immunity from civil lawsuits if the officer violated a federal statutory or constitutional right and the unlawfulness of the police conduct was clearly established at the time.

The panel also noted that a district court’s decision on summary judgment is not immediately appealable if it “stems from a finding that genuine issues of material fact remain to be resolved.” In this case, the district court noted disputed facts.

In particular, the court noted a discrepancy in Deputy Ortiz’s testimony concerning his intention when firing. First he said he was aiming at the driver and then said his intent in firing his weapon was to stop the threat (the vehicle) that was coming at him.

“A rational jury could find, based on that statement, that he intended to hit either the moving Bonneville or any of the people in it,” write Chief Judge Diane Wood. “Or the jury might believe him when he said that he was targeting only the driver.

“This leaves a critical disputed issue of material fact on the question of whether Ortiz acted in an objectively reasonable way as he was firing.”

The panel noted that a jury must decide whether firing repeatedly at a moving vehicle as it left the parking lot was objectively reasonable or objectively unreasonable as the court determines whether Ortiz’s action violated the Fourth Amendment.