No Immunity for Cop |Who Shot Prone Man

(CN) - A police officer who fatally shot a Palm Beach, Fla. man in back while he was face down on the ground, compliant and disarmed, is not entitled to immunity, the 11th Circuit ruled.

Victor Arango's family claims Palm Beach County Sheriff's deputy Michael Suszczynski needlessly shot Arango to death as he lay subdued on the ground.

Arango was in a crowd of ten to twenty people in a bar parking lot in June 2012. Police arrived in response to a call about a fight between two women, and ordered everyone in the parking lot to get down and put their hands in the air.

Witnesses dispute whether Arango got on the ground or was thrown to the ground by a deputy.

But there is no dispute that he made no attempt to get up or resist police after he hit the ground.

When a deputy noticed that Arango had a gun, he removed it from Arango's waistband and threw it about ten feet away.

Suszczynski then shot Arango twice in the back from approximately 12 to 18 inches away, in a manner one witness described as "execution-style," court documents say.

"Accepting this version of events, we hold that no reasonable officer would have shot Arango while he was lying prone, unarmed, and compliant," U.S. Circuit Judge Charles Wilson said, writing for the Eleventh Circuit's three-judge panel.

The law clearly states that the use of deadly force would be unconstitutional under the circumstances of this case.

Suszczynski had no cause to believe Arango had committed any crime, was about to escape, or was a threat to any officer. And he gave Arango no warning before shooting him, Wilson wrote.

The panel rejected Suszczynski's argument that his use of deadly force was constitutional because he believed his life or that of his fellow deputy's was in danger.

"Accepting Suszczynski's argument would require us to eschew this longstanding rule and determine 'reasonableness' based on his subjective beliefs," Wilson wrote. "Suszczynski's beliefs about his life or [Deputy Thomas] Hannigan's life being in danger are just that - his beliefs. They are not 'facts and circumstances' that we may rely on to objectively determine the reasonableness of his actions."

And although Arango was carrying a gun, the mere presence of a gun does not automatically permit the use of deadly force, the panel said.

At the time Suszczynski shot Arango, Arango had been disarmed, and any potential threat neutralized.

"The facts alleged reflect behavior so inherently violative of the Fourth Amendment that it should be obvious to any reasonable officer that this conduct was unlawful," Wilson said. "Accordingly, qualified immunity does not apply."

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