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.
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
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