Friday, August 17, 2018

Federal Court Confirms Officer’s Use of Deadly Force Justified in Order to Prevent Escape

A recently published federal court case underlines that if officers have probable cause to believe a suspect poses a threat of serious physical harm to themselves or others, they are justified in using deadly force to prevent escape. A warning is only required if feasible.

In Horton v. Pobjecky (2018), an unarmed off-duty police officer was waiting for food in a  pizzeria. The officer—Frank Pobjecky, was sitting in the break area with the restaurant manager—Vincenzo Tarara. Suddenly, four young men entered the front door. One of the men held a revolver. Two of the men entered the break room while a third went around the counter toward the cash register. The fourth man, Michael Sago (“Sago”), acted as a lookout. Sago stood in the entrance holding the front door open.

One of the men pointed a gun at Tarara and demanded money. Tarara told him to get out of his restaurant. Tarra then slamed the man against a cooler and reached for the man’s gun. While Tarara and the man struggled for control of the gun, Pobjecky, who knew that Tarara carried a concealed handgun on his hip under his shirt, grabbed Tarara’s gun.

Sago approached the break area. As he approached, Pobjecky gained possession of Tarara’s gun. Simultaneously, Tarara won the struggle for the other gun.  Pobjecky began shooting. He never identified himself as a police officer or gave any verbal warnings or commands.

With Tarara’s gun, Pobjecky engaged each suspect as they moved around the restaurant. Pobjecky shot and wounded all three men. Sago was shot three times from behind in the lower back as he crawled away toward the door. After Sago crawled out of the restaurant, Pobjecky locked the front door and called 911. Approximately 11 minutes later paramedics arrived. Sago died shortly thereafter.
James Horton, representing Sago’s estate, sued Pobjecky alleging that he used excessive force and failed to provide medical care in violation of 42 U.S.C. § 1983

In dismissing Horton’s case, the Court noted that as long as the assailants were moving inside the pizzeria, they posed a threat. The Court ruled that given the circumstances no reasonable juror could conclude that he should have stopped to identify himself as a police officer or warn each assailants before defending himself.

As to the failure to provide medical care, the Court ruled that it was “unreasonable to demand Pobjecky venture into the night with an empty gun, risking further onslaught, braving the hazards [Sago] and the other assailants created, to administer treatment to [Sago]”