The 8th U.S. Circuit Court of Appeals today affirmed
a lower court decision that the estate of Carleton Wallace
could pursue a lawsuit against Nancy Cummings,
who was an Alexander police officer when she fatally shot Wallace in September 2012.
Cummings said Wallace was obstructing traffic when he walked down the street. Cummings told Wallace to take his hands out of his pockets. He did and removed a gun from the waistband of his pants, then tossed it out of his reach on Cummings' command to drop it.
When Cummings tried to handcuff Wallace, he failed to respond, but didn't threaten Cummings. When Cummings, with her gun drawn, tried to grab his arm, her gun discharged. The opinion continued:
According to Cummings, her gun had fired when Wallace pushed her offbalance. Two eyewitnesses reported, however, that she had grabbed her gun with both hands and shot Wallace in the back after he turned away from the patrol car. Wallace continued to move away from Cummings after he was shot, taking a few steps and then falling down. From there he crawled to the side of the road where he died.
An autopsy found drugs in his system.
The estate sued Cummings, Police Chief Horace Walters and the city of Alexander, but Judge Billy Roy Wilson ruled that Walters and the city were immune from lawsuit. But he declined to give immunity to Cummings, saying the facts were in dispute on whether she intentionally shot Wallace. The appeals court said Cummings had not shown that the evidence "blatantly contradicted" the judge's decision. But she argued that, even if the shot was intentional, use of deadly force was reasonable. The 8th Circuit didn't agree. The facts indicate Wallace hadn't pointed a gun at Cummings and didn't constitute a threat to her safety or that of bystanders. The court saidenough evidence existed to argue that use of force wasn't justified. Nor did an effort to flee justify shooting under the law, the court said.
Given the record before the district court, a fact finder could reasonably conclude that Wallace no longer posed a significant threat after he had discarded the gun and begun to flee. Officers may not seize such "unarmed, nondangerous suspect[s] by shooting [them] dead."
It denied Cummings' request for summary judgment.