Quinn v. Zerkle, 2024 WL 3610110 (4th Cir. 2024)
Lt. Christopher Zerkle was on his way to investigate a report of domestic violence. He drove past two men, later identified as Eric Toon and Noah Sutherland, sitting on a parked motorcycle. Lt. Zerkle located and spoke to the couple who were involved in the domestic dispute. As Zerkle was finishing up with them, he saw Toon and Sutherland speed past on the motorcycle. The passenger, Sutherland, was not wearing a helmet. Since West Virginia law requires all riders and passengers to wear helmets, Zerkle followed to make a traffic stop.
Toon fled and the resulting pursuit reached over 100 mph. In place of a valid license plate, the motorcycle had a fake plate with the words “Run This” and a raised middle finger. Zerkle followed the men for five minutes, then informed dispatch he’d lost sight of the motorcycle and was terminating the pursuit due to traffic conditions. The dispatcher broadcast a description to other officers in the area. Zerkle returned to the couple from the domestic dispute, who helped him identify Toon and Sutherland.
Toon and Sutherland arrived at Toon’s house approximately 10 minutes after they evaded Zerkle. They ditched the motorcycle and ran into the house. Zerkle arrived shortly therafter, followed by officers from the sheriff’s department and local police department. With the help of his dog, a police K-9 handler found Toon’s motorcycle and helmet and tracked a scent to the front door of Toon’s house. Zerkle and another officer knocked on Toon’s front door, but no one answered. Meanwhile, Toon’s girlfriend, Quinn, awoke to the commotion. She suggested to Toon that they pray and that she speak to the officers. As it turned out, though, Toon wasn’t in a praying mood.
Toon, Quinn and Sutherland watched officers outside on a TV in the bedroom that was connected to exterior cameras. Toon told Sutherland to be sure the door was locked. An officer banged on the door twice while giving a standard police service dog warning. As the officer was giving a third warning, he heard movement inside and the door opened outward. The officers entered the home.
Meanwhile, Toon broke out a bedroom window and jumped to the ground holding an AR-15 rifle, with Quinn following close behind. Zerkle and another officer, who had been watching the perimeter, saw the two trying to make their escape. When Toon raised his rifle and aimed it at an officer, the two fired at Toon with their service weapons. Quinn was hit in the arm, and Toon was fatally shot.
“A police officer need not wait for a suspect to shoot before using deadly force. A natural corollary to that rule is that an officer is entitled to use deadly force when a rifle is pointed directly at him or another officer in his presence.”
After the incident, Quinn and Toon’s estate sued the officers. Toon’s estate claimed the officers entered the home unlawfully and used excessive force against him. Quinn also claimed the entry was unlawful and that she was the victim of excessive force.
The trial court ruled a reasonable officer seeing the door open after the officers knocked would have believed someone inside opened the door and consented in response to the knock and announcement: “Whether the door was somehow jostled open, opened by the rumored giant rats that Quinn testified prompted her and Toon to set a bear trap in their kitchen, or deliberately opened by one of the occupants of the house intending for the officers to enter while they fled through the window, the relevant facts are those perceived by the officers at the time.”
The trial court quickly resolved Toon’s claim of excessive force as “frankly, not a close call.” Knowing that the police were pursuing him, and having heard at least two warnings, Toon jumped out of a window and aimed a gun at an officer. All the shots were fired within two seconds of Toon raising his rifle. The trial judge ruled that “no reasonable juror could conclude that Zerkle saw Quinn and intentionally shot at her during the encounter.” The estate and Quinn appealed.
The appellate court disagreed with the trial court on the issue of the opened door and implied consent to enter: “The potential implications of this theory are especially troubling considering that some modern locks are electronic, battery operated, and/or controlled remotely (using apps, for example). Under this theory, if a technological failure causes a door with an electronic lock to open, an officer who happens to be waiting to question or arrest a suspect in that home would be free to enter without any affirmative sign of consent from the occupants simply because the door opened.” One judge noted that “perhaps some cherubic breeze nudged it open.” Quinn testified Toon had made the lock himself. The operation was atypical of a door lock—perhaps to prevent manipulation by a “rodent of unusual size” (R.O.U.S.) that somehow got past the bear trap in the kitchen. (I’d never heard of R.O.U.S.es until learning about them in the 1987 film, “The Princess Bride.” But apparently Toon and Quinn believed they existed in the area.)
The appellate court stated that “even if someone inside the home had unlocked the door, that fact alone is insufficient to demonstrate implied consent.” The occupant might have been opening the door to see who was knocking or simply to tell the police (or others) to go away. The court also dismissed the theory of hot pursuit, citing the Supreme Court decision in Lange v. California (594 U.S. 295 (2021)), in which the Court held pursuit of a suspected misdemeanant does not present an exigent circumstance justifying a warrantless entry into a suspect’s home. Moreover, a finding of valid consent to enter rests upon the voluntariness of the consent (Georgia v. Randolph, 547 U.S. 103 (2006)). One could conclude that someone opening the door did so in response to the statement that a police dog would enter and bite the occupants if they did not come out — hardly a voluntarily act: “A reasonable officer in these officers’ position should not have concluded that a previously locked door opening toward them, without more, constituted implied consent to enter the home.”
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In spite of these differences, the appellate court did agree Toon’s excessive force claim was without merit: “A police officer need not wait for a suspect to shoot before using deadly force. A natural corollary to that rule is that an officer is entitled to use deadly force when a rifle is pointed directly at him or another officer in his presence.” However, the court disagreed that Zerkle was entitled to qualified immunity for shooting Quinn. Zerkle asserted he accidentally shot Quinn when he fired at Toon. Because liability under 42 U.S.C. § 1983 must be based on intentional unconstitutional conduct, Quinn’s claim against Zerkle also failed. Nonetheless, the appellate court held a reasonable juror could disbelieve Zerkle and find he intentionally shot the unarmed Quinn in the back as she dropped from the window behind Toon. The court reversed the trial court’s grant of qualified immunity for the injuries to Quinn.
One judge dissented from the denial of qualified immunity for Zerkle shooting Quinn, concluding the evidence was clear that Zerkle shot Quinn when he shot Toon: “And all bullets were fired in the same manner, a single burst of fire, for the same purpose: to end the deadly threat posed by the suspect who was pointing his AR-15 towards the officers. Because the shooting was a single event with a singular time, place, manner, and purpose, it was justifiable.” The dissent noted: “When officers have the luxury of time, they may be held to higher standards. But we cannot require those whom society expects to confront danger on its behalf to make finely parsed distinctions in “tense, uncertain, and rapidly evolving” situations with deadly consequences (Graham v. Connor, 490 U.S. 386 (1989)). “Here, the officers acted instantaneously to protect their lives. It is wrong to second-guess their actions. What law is this that requires those who enforce the law to risk their very lives in the service of it?”
What law, indeed?
