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Thursday, October 1, 2015

Is Shooting a 68-Year-Old Man Lying on the Floor Illegal?

Incredibly, the police think not

Can it really be the case that a police officer violates the Fourth Amendment’s prohibition on using excessive force when he points a live firearm at a non-threatening individual, but not if he actually shoots and kills this person?

That’s the argument being made in Stamps v. Town of Framingham, which is now before the U.S. Court of Appeals for the First Circuit.

During a military-style SWAT raid on the home of 68-year-old grandfather Eurie Stamps — to execute a drug-search warrant regarding his stepson’s alleged activities — Officer Paul Duncan pointed an assault rifle at Stamps with the safety disengaged and his finger on the trigger, even though Stamps lay on the floor with his hands up. Duncan now claims that he became immune from suit when he unintentionally fired the rifle and killed Stamps.

Under the doctrine of “qualified immunity,” government officials — including police officers — are immune from suit if their actions don’t violate a “clearly established” constitutional right.

The crux of Duncan’s argument is that when his weapon discharged, he became immune from suit even if pointing an assault rifle at Stamps was an unconstitutional act by itself — because there’s no clearly established right against accidental death. This ridiculous argument was duly rejected by the lower court, because it’s both legally unsound and practically dangerous.

As a legal matter, Fourth Amendment protections against being unreasonably targeted with a firearm don’t evaporate when things turn out worse than an officer intended. Moreover, accidental discharge is hardly an unforeseeable consequence of pointing a loaded semi-automatic weapon — which could’ve been turned to full-auto here — during a tense paramilitary raid.

Foreseeable accidents don’t remove liability from the harming actor; if anything, unintended consequences augment the scope of the Fourth Amendment violation rather than immunizing an officer from liability for the foreseeable result of his intentional actions. 

As a practical matter, granting immunity to SWAT officers whose unreasonable behavior causes deadly accidents would be absurd and would likely lead to more deadly accidents. The case thus raises pressing issues of police militarization in society.

In briefing for a militarization case with nearly identical facts, Kane v. Lewis, Cato noted that

SWAT team deployments have increased more than 1,400% since the 1980s…. SWAT teams and tactical units were originally created to address high-risk situations, such as terrorist attacks and hostage crises. Today, however, these extreme situations account for only a small fraction of SWAT deployments; they’re used primarily to serve low-level drug-search warrants.

Accordingly, Cato has now filed a brief in the Stamps case, joining the ACLU, NAACP, National Bar Association, and LatinoJustice PRLDEF in requesting that the First Circuit affirm the lower court’s decision and posthumously vindicate Eurie Stamps’s Fourth Amendment rights. 

This post first appeared at

  • Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.