(CN) - The 8th Circuit denied qualified immunity to two Arkansas police officers who shot and killed a 12-year-old boy after mistaking his toy gun for the real thing.
West Memphis Police officers Erik Sammis and Jimmy Evans were part of a late-night stake-out team in June 2007, acting on a tip that two or three black males planned to rob a convenience store.
Around 10 p.m., the officers saw 12-year-old DeAunta Farrow and 14-year-old Unseld Nance approaching a nearby apartment complex.
What happened next is still in dispute, according to the St. Louis-based appellate panel.
The officers said they got out of the car, weapons drawn, yelled "police" and ordered the boys to get on the ground. Nance immediately complied, but Farrow remained standing, holding what appeared to be a gun. Sammis then shouted, "No!" before firing twice at the boys. Two bullets hit Farrow and he was pronounced dead at the scene. The gun was a toy.
But Nance told a different story.
He said the officers "did not identify themselves as police, nor did they have a visible badge or patch to signify that they were law enforcement officers."
He also claimed Farrow was shot while "fixing to get on the ground," the toy gun still tucked in his waistband. Nance said he initially thought that "they was people playing."
The boys' parents sued the officers, the town's mayor and its chief of police, alleging excessive force and unreasonable seizure. The police chief and the mayor were granted immunity, but the district court denied the same to the officers, saying there were too many disputed facts.
The 8th Circuit agreed.
Though Sammis and Evans "were in the area to watch for armed suspects and they knew they might encounter a dangerous situation," Judge Diana Murphy wrote, "that alone would not permit the use of deadly force."
She added: "If the factfinder were to determine that Farrow raised a handgun towards them and appeared ready to shoot, the use of deadly force could have been objectively reasonable. Since the surrounding factual circumstances are in dispute, material questions of fact prevent granting summary judgment on the basis of qualified immunity."
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