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Sixth Circuit Says Plainclothes Officers Can't Claim Qualified Immunity in Shooting of Henry Green

Police car with lights on in downtown district
By Laura Temme, Esq. on September 11, 2020 8:31 AM

The Sixth Circuit Court of Appeals has reinstated a lawsuit filed by the family of Henry Green against Columbus Police officers Zachary Rosen and Jason Bare, who fatally shot Green in 2016. The officers claim Green shot at them and they returned fire, but witnesses say the plainclothes officers did not identify themselves as police before the shootout began.

In 2017, the officers were cleared by an internal investigation, and a grand jury declined to indict them for their use of deadly force. Green's family filed then a civil suit against the officers and the city for wrongful death and violations of his civil rights. Columbus PD later fired Rosen for unreasonable use of force after he kicked a restrained suspect in the head. But, he was reinstated less than a year later.

In 2019, Judge George Smith granted summary judgment in favor of the defendants, finding the officers used reasonable force. But a Sixth Circuit panel found that while summary judgment was appropriate for the city, the officers likely cannot rely on qualified immunity to protect them.

Plainclothes Officers Fire Instead of Attempting Arrest

Rosen and Bare first encountered Green when he crossed in front of their unmarked police vehicle on foot at an intersection near his home. According to Green's friend, Christian Rutledge, the car screeched to a halt after nearly striking him. Green shouted at Rosen and Bare, who were on duty but in plainclothes as part of a new neighborhood safety program. The officers claim Green lifted his shirt to show that he had a gun before walking away.

They radioed police dispatch, saying Green had pulled a gun on them, and continued driving through the neighborhood trying to locate him. A shootout ensued when Rosen and Bare caught up with Green again, with conflicting accounts on who shot first.

Eyewitnesses and experts say Green was shot at least two or three times after he fell to the ground.

This is one place where the Sixth Circuit takes issue, finding that the officers made no attempt to arrest Green or that Green attempted to evade arrest before shots were fired.

"The fact that a situation unfolds quickly does not, by itself, permit officers to use deadly force," the panel wrote. "Rather, qualified immunity is available only where officers make split-second decisions in the face of serious physical threats to themselves and others."

The panel found that although it's possible the officers' use of force was reasonable at the beginning of the encounter, that doesn't necessarily mean there was no constitutional violation.

The Sixth Circuit has consistently held that the use of force after a suspect is incapacitated is excessive as a matter of law. Finding there is a material dispute of fact regarding whether the officers kept shooting after Green fell, the complaint against Rosen and Bare is headed back to the district court. The panel affirmed the dismissal of claims against the city.

Related Resources:

Tenth Circuit Weighs in on Qualified Immunity (FindLaw's 10th Circuit)

Qualified Immunity: Both Sides of the Debate (FindLaw's Supreme Court Insights)

Podcast: Making Sense of Qualified Immunity (FindLaw's "Don't Judge Me")

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