Waterman v. Batton

Incident Summary & Facts

On November 28, 2000, at about 3:11 p.m., a Maryland Transportation Authority (MdTA) officer clocked Josh Waterman at 51 mph in a 25-mph zone near BWI Airport and began a pursuit. Waterman did not stop. At about 3:17 p.m. a pursuing officer radioed that Waterman “just tried to run me off the road … he’s trying to take us off the road,” and all three defendant officers heard that report. Later, a “10-0” (use caution) warning went out after Waterman reportedly “reached under the seat”; only Officer Heisey heard the warning, and none of the defendants heard about the reach. In a footnote the court noted that the patrol-car video raises some question whether Waterman actually tried to run the officer off the road, but the defendants did not have the video.

After more than 10 minutes of pursuit, Waterman came out of the Fort McHenry Tunnel and drove toward the toll plaza at normal speed, keeping a safe distance from traffic. Five uniformed officers stepped out from a concrete island with weapons drawn, yelling for him to stop. He slowed and coasted at about 11 mph. When the car ahead moved, Waterman’s vehicle “lurched” forward and accelerated in the general direction of the officers. At that instant Officer Batton was a little more than 16 feet ahead, Hames a little more than 23 feet, Heisey 38 feet, and Keel about 72 feet. None was directly in the vehicle’s path, but they stood “only a few feet to the passenger side” of it, and the car could have reached Batton and Heisey in about one second. The officers fired immediately. The car reached about 15 mph, passed the officers “by several feet,” and the officers kept firing from the side and rear. Within about six seconds, Batton fired four rounds and Keel and Heisey two each. Waterman suffered five gunshot wounds, including a rapidly fatal neck wound, and died.

The estate sued under § 1983 and state law. The district court denied the officers summary judgment on qualified immunity, and the officers brought an interlocutory appeal.

Core Legal Issue

Whether officers who shot a driver who accelerated toward them at close range were entitled to qualified immunity under the Fourth Amendment, both for the initial shots and for the shots fired seconds later after the vehicle had passed them.

The Holding

The majority (Wilkins, C.J., joined by Hudson, J.) reversed and remanded. The initial shots were reasonable as a matter of law. The later shots, viewed favorably to the estate, could be found unconstitutional, but that rule was not clearly established in Maryland in November 2000, so the officers were entitled to qualified immunity on both sets of shots.

The Court’s Analysis:

• Graham/Garner framework: Deadly force is permitted when an officer has “probable cause to believe that the suspect poses a threat of serious physical harm.” Reasonableness is judged at “the moment that force is employed.” Under Fourth Circuit law, the officer’s own conduct in creating the danger is not relevant.
• Initial shots: The court weighed factors on both sides: the irrational 10-minute flight, Waterman’s failure to stop for armed officers, his acceleration toward them, and the reported attempt to run an officer off the road, against his non-reckless driving, the lack of vehicle damage, and his low speed. But the officers “did not have even a moment to pause and ponder.” If they hesitated “they risked losing their last chance to defend themselves,” and “[t]he Constitution simply does not require police to gamble with their lives.”
• Position relative to path: The court agreed that an officer’s position relative to the vehicle’s path matters. Here, nearness to the projected path was “crucial,” because Batton and Heisey could have been hit in about one second if Waterman turned slightly.
• Later shots: “[F]orce justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” Once the car passed, a jury could find the threat was over. Because of Pittman v. Nelms and the ambiguity in Rowland v. Perry, however, this was not clearly established in 2000.
• Dissent (Motz, J.): The dissent would affirm. Waterman was moving through a toll plaza at 11 to 15 mph, eyewitnesses swore no officer was in danger, and the video did not definitively refute them, so genuine factual disputes precluded summary judgment.