Cops Who Shot Joy Rider Win Immunity on Appeal

     WASHINGTON (CN) – Deputies who shot a fleeing teenage suspect four times have immunity from civil-rights charges, the D.C. Circuit ruled.
     The altercation occurred in January 2007 when Michael Fenwick parked his car at a southeast Washington apartment complex where deputy marshals Andrew Pudimott, Jeremy Fischer and John Mickle were waiting to serve an eviction notice.
     Having noticed Fenwick’s difficulty with parking and youthful appearance, the deputies took a closer look at the car as Fenwick went inside the apartment building.
     Seeing that the car’s door lock was broken, the deputies suspected that Fenwick had stolen the car.
     When Fenwick emerged from the building, the deputies called out to him that they wanted to speak to him. Fenwick pointed to his chest, as if saying, “Who, me?,” but otherwise ignored the command.
     With Fenwick attempting to back the car up, the deputies surrounded the vehicle, guns drawn, and ordered Fenwick to halt.
     The ruling says Deputy Pudimott was visible near the driver-side front of the vehicle when Fenwick drove forward toward the parking-lot exit, “clipping Pudimott with the car’s side mirror.”
     “Fearing for ‘the safety of themselves, fellow officers, and/or possibly other bystanders,’ … Pudimott and Fischer opened fire, striking Fenwick with four bullets,” the ruling states.
     After Fenwick recovered from his gunshot wounds, he was charged as a minor with three counts of felony assault on a police officer, enhanced for being armed with the weapon of his vehicle. Fenwick was acquitted of assaulting Fischer and Mickle, but found guilty in 2010 of armed assault against Pudimott.
     The teen meanwhile was suing the three officers for excessive. Mickle was dropped from the case because he never fired his weapon, but the court denied Pudimott and Fischer qualified immunity.
     Reversing for the offices on Friday, a three-judge panel with the D.C. Circuit found that the question of whether the officers in this case violated a constitutional right is “far from obvious.”
     Since they did not open fire on Fenwick until after he clipped Pudimott with his car and no longer posed an immediate threat to an officer or a bystander, the court looked at whether the officers violated a law that was clearly established.
     No one was in immediate danger at the time the deputies shot Fenwick, but the criminal court that convicted Fenwick determined that his driving in the moments before the shooting “posed a ‘grave risk of causing significant bodily injury’ to an officer,” according to the ruling.
     Because Fenwick had been driving in a way that endangered an officer in an area where there were pedestrians and other cars, it could not be clearly established that the deputies used excessive force, the court found.
     The court emphasized that its dismissal of Fenwick’s remaining claims, based on the finding of qualified immunity, relies on the very specific facts of the case.
     “In reaching this conclusion, we emphasize that nothing in this opinion should be read to suggest that qualified immunity will shield from liability every law enforcement officer in this circuit who fires on a fleeing motorist out of asserted concern for other officers and bystanders,” Judge David Tatel wrote for the panel.
     Judge Karen Henderson wrote in a concurring opinion that the officers were justified in using force as soon as Fenwick posed a threat of bodily injury to Pudimott, until the threat was neutralized.
     Judge Thomas Griffith rounded out the panel.
     Assistant U.S. Attorney W. Mark Nebeker argued for the government, while attorney David Shurtz represented Fenwick.

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