Can the Police Shoot You When You Are Driving?
Can the police shoot you when you are driving? That sounds like a ridiculous question but it happens more than you think. A lawsuit filed by a man shot three times by a volunteer state constable might answer that question in South Carolina.
The law regarding the use of deadly force varies state to state. Some states have stand your ground laws while others have stricter standards. In all states, police can use deadly force to protect themselves or a third party. For example, if you are shooting at the police, they can shoot back. Ditto if you are holding a hostage and won’t surrender.
The U.S. Supreme Court previously ruled that police can’t use deadly force against unarmed, non-dangerous subjects that are attempting to flee. That means there is no automatic right to shoot people in their cars who are simply trying to get away.
In Tennessee v. Garner, the Supreme Court said, “The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, non-dangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”
Tricky questions of law emerge when cops shoot at someone in a moving vehicle. Invariably, the police say they felt like their lives or the public were in danger. The law, however, looks to see if the officer’s actions were reasonable.
In March 2018, volunteer State Constable Christopher Bachochin was riding with the Florence (S.C.) Police Department. In South Carolina, state constables do not receive the same level of training as full time police officers. It is unclear why Bachochin was “working” that night. He claims he needed a certain number of hours to maintain his law enforcement certification.
The incident happened when the Florence officer with whom Bachochin was riding pulled over a car for crossing the center line of the roadway. Crossing the center line is a traffic infraction. It is also a telltale indicator of drunk driving. Simple traffic infractions are often used as a pretext by the police to ferret out other criminal behavior or drunk driving.
Apparently, after being pulled over the driver of the car, 28 year old Brandon Fludd, became belligerent and refused to exit his vehicle. At some point he put his vehicle in reverse. While backing up he hit an unoccupied patrol car.
Did he ram the patrol car? Strike an officer? Was the accident truly accidental? Ordinarily, those would be critical questions for a jury to determine. Today, body cam and dash cam footage make it is easier for jurors to get to the bottom of who is telling the truth and who is lying.
In this case, Fludd says he was shot while driving away from the scene. If true, that makes the officer’s justification of the shooting much more difficult.
Bachochin fired eight times. Fludd was hit by multiple bullets including in the chest, knee, shoulder and arm. The wound to his arm shattered his forearm. Two years after the incident doctors still can’t safely remove one of the bullets. His injuries are permanent.
A 2 ton vehicle can certainly be considered a deadly weapon. Few would question an officer that shoots at a vehicle deliberately trying to run over the officer or a civilian. Does that justify shooting the vehicle after the assault or accident occurred while the vehicle is leaving?
That question is likely to be resolved in a South Carolina courtroom.
The state attorney general’s office cleared Constable Bachochin. They say Fludd nearly hit two officers and that Bachochin’s actions were “objectively reasonable” to protect himself and his partner. (The Florence police officer did not shoot.)
The Attorney General’s determination means that Bachochin won’t be criminally prosecuted. It doesn’t resolve whether there is civil liability. Two years from the shooting, Fludd recently filed suit seeking monetary damages for his injuries. His lawsuit includes the City of Florence as a defendant. Fludd says that the city shares responsibility because they allowed Constable Bachochin to ride with their officers.
Much of the case will rely on the video footage.
Suing the Police for Wrongful Shootings
Suing police officers after a shooting is rarely easy. Most police shootings take place within a split second. Although we do not consider shooting a man who is leaving the scene is reasonable, some jurors may disagree.
South Carolina requires unanimous juries even in civil cases. Some states only require a majority vote. (Federal courts always require unanimous juries.) In South Carolina, civil trials have 12 jurors. That means the person suing the police must convince all 12 jurors that the officer’s actions were not reasonable. That is no easy task, especially in conservative jurisdictions.
Since Fludd was shot, he was again arrested. Last year he was involved in a high speed chase. After his arrest sheriff deputies say they recovered crack cocaine, enough crack to be charged with distribution.
While Fludd’s new charges are not relevant to whether Bachochin acted reasonably when shooting Fludd 1 year earlier, getting arrested again certainly isn’t helping his case. In small cities and rural areas, it’s hard to keep that information away from juries.
Can I Sue if the Police Shoot Me in my Car?
As discussed above, there is no clear cut answer to that question. Much depends on the facts of each case. Was the officer in danger? Were others in danger. Was the driver of the vehicle armed and if he was, did the police know that at the time of the shooting?
Last spring a Temple, Texas police officer was indicted for manslaughter following a fatal shooting during a traffic stop. Officer Carmen DeCruz had pulled over a driver for speeding. Police said there had been a short pursuit before the man pulled over.
As the officer approached the car and attempted to pull the keys out of the car, he shot the driver in the head. A Bell County Grand Jury decided the officer acted unlawfully. The driver was unarmed. Although the driver had initially attempted to flee, he later complied with the officer’s lights and siren and pulled over.
These cases may not be easy but it is still important to hold officers accountable when they shoot someone without legal justification.
If you or a loved one was wrongfully shot by a police officer, trooper, federal agent or deputy sheriff, you and your family may be entitled to substantial monetary damages. Call our legal team at 866.836.4684 or Connect Online today for a confidential no-cost evaluation of your case and your options. There are strict time limits for filing a civil rights or other lawsuits related to police brutality, in custody injury, or wrongful death.