Unarmed, Caged In and Shot 137 Times

(CN) - Police will face a jury trial for firing 137 bullets at the unarmed suspect in a car theft whom they cornered in a parking lot, a federal judge ruled.

In January 2010, Orange County sheriff deputies devised a plan to capture Torey Breedlove, a car theft suspect, in the parking lot of a Florida apartment complex. The officers had spotted a stolen truck parked next to a car that belonged to Breedlove, who had been a suspect in a 2009 auto theft investigation, and waited for Breedlove to return to the apartment building.

Breedlove, who had allegedly escaped from police during the previous investigation, was considered "a flight risk" and "frequently armed," the Orange County Sheriff's Office said.

When Breedlove returned to the parking lot and got into his car, several officers approached him with guns drawn, while two other officers blocked his exit with their unmarked cars, according to the complaint filed by Breedlove's estate. Though Breedlove had a flat front tire and was - in the words of a witness - "trapped like a rat" between a deputy's truck and the back corner of the parking lot, 10 officers fired 137 shots into his car, killing him, according to the complaint.

The deputies claimed that Breedlove had tried to escape, but a witness had reported that Breedlove had no room to maneuver and had held his hands up the entire time.

The officers had given Breedlove no warning, and had stopped briefly only to reload their guns, according to the complaint. Two witnesses also claimed that the deputies, who wore plain clothes and drove unmarked vehicles, had made no attempts to identify themselves, and never indicated they were police.

Breedlove's family sued the 10 deputies, two supervisors, and Orange County Sheriff Jerry Demings in 2011 for excessive force and civil rights violations.

U.S. District Judge Gregory Presnell preserved the family's claims against the shooting officers, noting that a jury would likely find they had acted unreasonably.

One witness noted that Breedlove had attempted to surrender once "boxed-in" by the police cars, and posed no risk to the officers or anyone else, but the officers had shot him without warning, the April 19 ruling states.

"Even if Breedlove presented some danger to officers as he maneuvered through the parking lot, '[a] passing risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect,'" Presnell wrote.

Breedlove was only a suspect, had no known history of violence, and was fleeing from unidentified armed men in unmarked cars, which was likely a reasonable response to the situation, according to the ruling.

What's more, Breedlove did not use or threaten to use his car as a deadly weapon, since the deputies had rammed into his car to block it, not the other way around, the ruling adds.

"A reasonable juror might also question why 137 shots were required to secure an unarmed suspect who drove a few dozen yards through a small parking lot, with a flat tire, at a relatively slow speed causing some minor fender-benders with unoccupied cars, and was pinned between two cars with his hands up," Presnell wrote.

It is also hard to explain why the officers had waited until Breedlove got into his car and started the engine before trying to arrest him, though they had been following him for hours and were waiting for him, the ruling states.

Presnell denied the 10 deputies qualified immunity, concluding that they had likely used excessive force.

But the judge found that there was no evidence that Sheriff Demings and the Orange County Sheriff's Office had a policy of failing to warn before using deadly force, or that they had not trained their officers sufficiently.

He also dismissed claims that the head of the auto-theft division had failed to train officers on "tactical park," but agreed that another supervisor present on the scene could have ordered the officers to cease fire, since he was closest to Breedlove and most capable of assessing the situation.

"Police officers have a difficult job and often have to make split-second decisions to defend themselves or protect others from harm," Presnell concluded. "Qualified immunity grants the police a large degree of protection from suit when acting within their discretionary authority, but this discretion is not unbounded. Viewing the evidence in the light most favorable to the plaintiff, the conduct at issue here is more akin to an execution than an attempt to arrest an unarmed suspect. The qualified immunity bar is not set that low."

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