Appeals Court: No Immunity For Shooting A Man Who Had His Hands Up And Twice Said He Surrendered
from the muh-safety dept
By the time some qualified immunity cases hit the appellate level, there's an air of "why are we even discussing this" about them. But if there's even a 1% chance the next level of review might overturn a lower court ruling, the cases will addressed, no matter how obvious their conclusions.
This is one of those cases. In this one, it's a police officer needing to hear one more time that the shit they pulled just isn't legal. It started with a parking ticket and ended with the ticketee being shot by a police officer. In between, there was a misunderstanding and an altercation. And, after this review, the odds are even lower that the officer is going to be able to talk a judge or jury into excusing his actions. Here's the backstory:
Craig Strand, a truck driver, needed to take a mandatory drug screening. Since he was unable to fit his truck in the testing facility's parking lot, he obtained permission to park it at a nearby Planned Parenthood office. Officer Curtis Minchuk, who was providing security for Planned Parenthood while in uniform and with the blessing of his department, saw Strand's truck and left two parking tickets on its windshield.
Strand returned to his truck and saw the tickets. He returned to the Planned Parenthood office to inquire about them and was directed to meet Officer Minchuk in the parking lot. Strand explained he had received permission to park there. This is where things went downhill for Strand, his rights, and his as-of-yet unwounded body.
From the decision [PDF]:
Minchuk had no interest in discussing the tickets beyond, as the district court observed, allegedly soliciting a bribe from Strand.
Let's pause there for effect. Officer Minchuk didn't want to be right. He wanted to be paid. Any explanation Strand offered would have been ignored. Strand realized this and made preparations to leave, but not before gathering a little exculpatory evidence.
After Strand declined to pay, Minchuk drove to the back of the Planned Parenthood facility. Strand started his rig, but before driving away used his cell phone to take pictures of the parking lot, thinking he might need them to show the absence of no‐parking signs to contest the tickets.
In response to this non-threatening (at least to Minchuk's life, but perhaps not his livelihood), the officer decided to thug out.
Observing from a distance, Officer Minchuk returned to the truck and ordered Strand to leave immediately. Strand said he would leave as soon as he finished taking pictures. Minchuk responded by saying he was calling a tow truck and telling Strand he had two minutes to leave.
The situation then escalated. Stepping toward Strand, Officer Minchuk admonished, “I told you to get the f*** outta here,” and slapped Strand’s cell phone to the ground. Minchuk then demanded Strand’s identification; Strand refused and countered by demanding Minchuk’s badge number. Minchuk replied, “I said, give me your I.D.” and grabbed Strand by his shirt and neck, resulting in Strand’s shirt tearing off his body. Minchuk attempted to push and tackle Strand to the ground, with Strand resisting by holding on to Minchuk’s arm.
According to Officer Minchuk, Strand got the upper hand. The officer was punched three times before being grabbed by the throat. Minchuk claimed he feared for his life and that, if he passed out, Strand would take his gun and shoot him.
But that's not what happened. Strand decided to disengage and de-escalate.
The fist fight ceased when Strand stood up, backed four to six feet away from Officer Minchuk, put his hands up, and said, “I surrender. Do whatever you think you need to do. I surrender, I’m done.”
Of all the possible ways Officer Minchuk could have reacted to Strand's capitulation, he chose the worst:
While still on the ground, Minchuk responded by removing his gun from its holster and firing a shot at Strand, striking him in the abdomen.
The lower court denied Minchuk qualified immunity. It pointed to unresolved facts that prevented it from dismissing the case at this point. Minchuk stuck to his "feared for my safety" guns to explain his use of his actual gun, but the record shows only 21 seconds passed between Minchuk calling for backup and the 911 call reporting the shooting, which was placed by a Planned Parenthood employee. This strongly suggests Minchuk performed no reassessment of the situation after Strand stood up, walked away, put his hands up, and (twice) said he surrendered.
The appeals court won't be extending qualified immunity to Officer Minchuk either. It makes several good points, the first of which deals with Strand's apparent surrender. If officers are justified in shooting surrendering suspects, this leaves arrestees zero options to avoid being shot. That's an obviously ridiculous outcome.
Officer Minchuk resorted to the use of deadly force at a time when Strand had stopped fighting, separated from Minchuk, stood up, stepped four to six feet away from Minchuk, and, with his hands in the air, said, “I surrender. Do whatever you think you need to do. I surrender, I’m done.” The record shows that Strand was unarmed at all points in time. Furthermore, upon standing, raising his hands, and voicing his surrender, Strand never stepped toward Minchuk, made a threatening statement, or otherwise did anything to suggest he may resume fighting or reach for a weapon.
But that's not everything Minchuk did wrong. Minchuk is the one who provoked the situation to the point it turned into an altercation. He doesn't get to pretend someone leaving a parking lot after receiving parking tickets is an inherently dangerous situation requiring the use of deadly force.
Recall, too, the broader circumstances that led to the shooting. The police were not in hot pursuit of an individual known to be armed and dangerous. Nor had the police responded to a report of violent crime or otherwise arrived at a location only to find an individual engaged in violent or menacing conduct or acting so unpredictably as to convey a threat to anyone present.
To the contrary, the entire fracas leading to Officer Minchuk’s use of deadly force began with his issuance of parking tickets. After Strand declined to make an on‐the‐spot cash payment and instead sought to take pictures to show the absence of no‐parking signs, Officer Minchuk allowed the situation to escalate and boil over by slapping Strand’s cell phone to the ground and then tearing Strand’s shirt from his body.
As the court points out, this isn't even a difficult call. Any reasonable jury would find Minchuk's shooting of Strand to be a Fourth Amendment violation. Shooting someone is seizing someone, depriving them of their liberty and, quite often, their life.
The Fourth Amendment does not sanction an officer—without a word of warning—shooting an unarmed offender who is not fleeing, actively resisting, or posing an immediate threat to the officer or the public.
This doesn't mean Minchuk won't ultimately be granted immunity, but it seems very unlikely the remaining disputed fact -- the amount of time that passed between Strand walking away from the fight and putting his hands up, and Minchuk's shooting of the surrendering Strand -- would push a jury (or a judge) to find in favor of the officer. But the appeals court can't make the final determination until this factual dispute is resolved. The case is remanded to the lower court, but the appellate decision includes this passage, which throws a bunch of cold water on Minchuk's QI hopes.
Factual disputes do not resolve on the force of say so, however. What Officer Minchuk sees as undisputed—whether Strand continued to pose a threat at the moment Minchuk deployed deadly force—is actually unresolved and indeed vigorously contested by Strand. For Minchuk to prevail at this stage, the record must show that he fired while Strand still posed a threat. Instead, the record shows that Strand had backed away, voiced his surrender, and up to five, ten, or fifteen seconds may have elapsed while Strand stood with his hands in the air.
Officer Minchuk screwed up. And he should get the chance to pay for it. According to the facts of the case, he turned two parking tickets into a shooting by being as much of an asshole as possible every step of the way. And he topped it all off by shooting someone who had their hands in the air and had twice stated they surrendered. That's garbage police work that doesn't deserve the immunity he's seeking.
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Filed Under: curtis minchuk, police, qualified immunity
Reader Comments
The First Word
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There's setting the bar low, and then there's throwing it out
Officer Minchuk screwed up.
Using the wrong paperwork for something would be an example of someone who 'screwed up'.
Parking in a handicaped zone because you weren't paying attention would be an example of someone who 'screwed up'.
Writing not one but two bogus tickets could possibly be classified as 'screwing up'. (Though the attempt to get paid to make them go away would seem to suggest it was more an attempt to get a quick buck.)
He didn't 'screw up', he attempted to extort someone for money via bogus tickets, assaulted him, attempted to destroy evidence that would contradict his claims, and then attempted to murder someone who had surrendered.
To call that a case of someone who 'screwed up' is to set the bar so low it might as well not exist.
He should not only be stripped of qualified immunity and fired, but charged with assault and attempted murder at the least.
If officers are justified in shooting surrendering suspects, this leaves arrestees zero options to avoid being shot. That's an obviously ridiculous outcome.
More than 'ridiculous' it's dangerous, to the police. Basic psychology is that desperate people are more willing to take extreme actions if they feel they need to, making even otherwise peaceful people much more likely to fight, possibly to the death.
If people come to believe that surrendering to the police has good odds of getting them killed then they are going to be much more likely to do everything they can to escape, up to and including attempting to shoot if not kill the officer(s) in question, and that's not a good outcome for anyone sane.
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Re: There's setting the bar low, and then there's throwing it out
By both the letter and spirit of self defense laws in the US, that belief would allow a person to lawfully shoot and even kill a police officer.
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Re: Re: There's setting the bar low, and then there's throwing it out
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Re: Re: There's setting the bar low, and then there's throwing it out
Causing, in a warped way, a bit of a self-fulfilling prophecy, not to mention an ever-increasing cycle of violence.
Cop: I feared for my life, because I thought they might injure/kill me.
Non-cop: I feared for my life because I thought they might injure/kill me and excuse it by claiming that they 'feared for their life', and since surrendering is no guarantee of safety, and could very well have cost me my life, I did what I thought I needed to to escape the situation.
Cop: Look, citizens are growing even more violent towards police, we were right to fear for our lives all along, and as such our actions of employing force to protect ourselves are not only justified it's clear even more is needed.
Both citizens and sane cops should be hoping that the argument presented by the would-be-killer here are shut down, hard, because a 'win' for them stands to make things a lot worse for everyone else. 'You can start a fight to justify use of deadly force, and attempt to kill people even after they surrender and pose no threat.'
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Re: There's setting the bar low, and then there's throwing it out
You are forgetting that some people want to kill other people and may choose a job that lets them do that. Escalating a situation to point of being able to do so then is what it's all about. The more people resist, the more opportunities there are.
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Re: Re: There's setting the bar low, and then there's throwing it out
Hence the 'sane' qualifier, as I don't consider anyone who goes into a job with the goal of being able to assault and/or kill people to be sane individuals, and would instead classify someone like that as worse than a rabid animal(worse in that a rabid animal doesn't have control over their actions), deserving of confinement and psychological treatment so long as they maintain that warped mindset.
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Re: Re: Re: There's setting the bar low, and then there's throwing it out
"Hence the 'sane' qualifier,"
That's not much of a qualifier.
"I don't consider anyone who goes into a job with the goal of being able to assault and/or kill people to be sane individuals"
Then you must consider a significant number of police to be insane.
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Police work had nothing to do with it, dearie.
Saying this is "garbage police work" is like calling cooking and eating your wards "garbage baby-sitting". Even for "garbage police work", there would be qualified immunity. But this doesn't meet the admittedly low bar of garbage. The officer did not attempt to do police work but organized crime with syndicate backing and should be prosecuted accordingly.
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I've given up on expecting the average person to actually understand what the badge means, or color of authority, but I DO expect cops to understand it.
They're *supposed* to be protected from personal charges and/or suits by that authority when performing their LAWFUL duties.
That so many of them think the badge is a get out of jail free card is ludicrous.
His actions aren't covered by that authority in this case, he should be treated just as you or I would be in his place.
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What evidence is there to support the opposing view?
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The badge isn't causing the court problems. The police Union is.
Little of column A, little of column B I'd say. What I meant was that because he has a badge/is a cop, courts are much more likely to(and are in this case) give him treatment above and beyond what your average person would get, something which I consider a problem because it sets up a multi-tiered legal system where something as simple as your profession can result in drastic changes with regards to how the law is applied to you and which parts of it bind you.
If a non-cop had done the things he had(tried to extort money from someone, tried to destroy their phone, assaulted them and then tried to murder them) I find it all but impossible to believe that it would have reached this point. They'd have been charged and sentenced almost overnight, but because the one who did those things is a cop the courts/judges have to go through a ludicrous song and dance determining that no, that sort of thing probably shouldn't be considered as falling under official duties and therefore they don't get to hide behind their profession.
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Since federal courts consider possessing a firearm while committing a crime to be an armed crime (even if the victim never became aware of the gun during the crime) and uniformed cops are almost never unarmed, this means that a rights violation by an armed officer is nearly always a felony. And if someone dies as a result of the violation -- even an officer being killed in self defense by his victim -- it jumps to a capital crime!
Don't believe me? Here's a link about it, right on the DoJ's website: https://www.justice.gov/crt/deprivation-rights-under-color-law
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Re: Re: Re: Re: Re:
>Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Which means Officer Minchuk violated Federal law and is liable for up to 10 years of confinement. But to the court's point of view, that now depends upon whether it is 5, or 10, or 15 seconds between something and something. Oh my gosh...where is the presumption of innocence?
And I am still looking for anything in this story to make me think that Craig Strand was guilty of anything he wasn't induced into doing by someone acting 'under the color of law' even when he was off duty. HE WAS OFF DUTY, so why any consideration of qualified anything?
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Rule 1 Of Comment Posting
Always preview.
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Re: Rule 1 Of Comment Posting
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Re: press 'enter' in the wrong place
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Re: Re: Re: Re: Re: Re: Re: [mark-up]
Is there any chance of finding the person who thought that this "markup" stuff was a good idea, instead of using HTML like most of the world's web browsers? If we find him, we can use the pointed sticks.
Then, the "markup" box could be unchecked by default. We would we'd use normal HTML. You would not have to worry about a special language for one forum.
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While HTML would also be fine, I find markdown vastly preferable to BBCode.
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Re: instead of using HTML
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Re: Re: Re: Re: "The badge isn't causing the court problems..."
Eh, Bamboo's right, but in the wrong way; which is another way of saying that the two of you are addressing 2 different points.
Is the badge the problem, the symbol that attracts and shields thugs of various sorts? Oh, no doubt about it, because it's a symbol, a symbol that most folks want to stand for truth, justice, and the american way. So yeah, in that way, the badge is a problem, because symbols are cantankerous things.
But is the police union system the pro0blem? Oh, you better believe it, not least because those unions polish that badge image at every opportunity.
But it's worse than that, because in put-near every US city large enough to justify more than one cop union shop, the police union's a political heavy-hitter. In fact the police are probably the most powerful minority* special-interest lobby in the nation.
And since that means that as long as cop unions exist, they will meddle in politics, it means that reining the police in via reform almost never persists long enough to get the dirty cops out.
Dirty cops are famed for saying that, in the lawless parts of town, it takes a dirty cop to police a dirty neighborhood. I'll counter that with saying that there was /never/ a lawless town that has been cleaned up by lawless cops. Ever.
In fact, a modest look into history shows that the first thing a crime-ridden society must do to change that fact has always been to rid itself of crime-ridden cops. It's a truism that echoes down the ages.
*"Minority" in terms of the population of this special-interest base vs. the general population, rather than having a special legal status in the eyes of the law, although that latter point also applies. The police may be /the/ most legally-shielded special-interest group in the nation, although variations across state laws is likely sufficient to render that statement technically unprovable, a useful point for those who like to pretend that they don't have much protection at all would have you believe.
But that's just me gertruding, because on the 'net it's almost inevitable that if you don't, some joker will come along and deliberately misinterpret the use in context, and they'll use it to accuse you of racism, or whatever. So my apologies for the lengthy(?) closing paragraphs.
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No, he shouldn't.
The fact he was off duty means he should get no special treatment, as you say.
The fact he was at the time employed as an officer means he should get zero 'breaks', wiggle-room or leeway, because he knows the law, and the requirements to follow the law.
The fact he was in uniform at the time despite not conducting official police business means that he was attempting to use his uniform for extra leverage, and to intimidate/infer that his actions were legitimate law enforcement actions sanctioned by the city. As such he should be dealt with far more harshly than you or I.
To then attempt to use an exception created by the courts to permit officers on the job to have discretion in doing that, while not on the job at all.
In short, he attempted to use his uniform to justify (and then excuse) his actions. He should be held to a far higher standard, and have the book thrown at him.
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The moment the officer attempted to get a bribe, he already crossed the line. There should be no protection for a grossly illegal act including bribery.
Nothing after that point should have any protection, this person is at best impersonating an officer, at worst attempting theft under color of law.
Why in heaven's name did anything the officer do after that point qualify for immunity?
(Trick question, the officer raised a qualified immunity defence and the courts hands are tied if you cant show that this specific thing did not happen in the past, if only because we've forgotten the 1920s and a lot of cops going down on bribery back then)
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I used the word "supposedly" because that is what the laws state but it is almost never enforced. I could not find a single example anywhere in Ohio where it was enforced, though my search was not the most thorough.
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The Appeals Court gets to question the immunity because it can't study the evidence itself since only the qualified immunity was appealed. Now that qualified immunity has been lost, he'll be tried in the lower court (or plea bargain) and we'll see what happens there.
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but who do you sue?
Another thing not clear is how can anyone get a parking (or traffic) ticket while on private property?
It's another of many reasons why moonlighting by cops needs to be outlawed everywhere.
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Uniform going on does not equal brain going off
Who is responsible for police brutality in a situation like this, the private business that hired the off-duty uniformed cop, or the city that provided him a badge and uniform?
Option C: The thug with a badge.
He assaulted the victim, he attempted to murder them, therefore the responsibility is on him and the penalties should be as well.
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Re: Uniform going on does not equal brain going off
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Re: Re: Uniform going on does not equal brain going off
especially screenings and psychological evaluations to find signs of aggressive, bullying, authoritarian mindsets in recruits
They already do that.
and then not hire them
Oh :)
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Re: but who do you sue?
Parking in a handicap space can get you a parking ticket despite that the space is likely on 'private' property. The Parking lot of Planned Parenthood is not 'private property' to the extent you imagine.
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Re: but who do you sue?
The police officer who committed the act of brutality.
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Re: but who do you sue?
As to tickets on private property, that's a Code item. "Regular" cops can't issue them. Code Enforcement officers can. If tickets couldn't be issued on private property, there'd be little point to Handicapped Parking spaces.
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Re: Re: but who do you sue?
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Re: Re: Re: but who do you sue?
Private traffic signals (parking lot stop signs), too many unregistered vehicles on private property, (my favorite) illegal housing of a Farm Animal within Town Limits, etc.
They also tend to be the Inspectors that check new/renovated buildings to make sure they're up to Local, State, and Federal Code - doors swing the right way, electrical meets NEC, that kind of thing.
They ONLY handle Administrative Law - tickets and such. No misdemeanors or felonies, if they see/find one, they have to report it to the actual police for action.
If someone illegally parks in one of my lots, I can have their car towed - I don't recall the law that allows that offhand, I think it's under either trespass or abandonment of property statutes.
I can NOT "ticket" them, extort them, smash their property, or shoot them for "illegally" parking on my property.
Nor can anyone I hire to "protect" my lot, even if they're off-duty FBI Super Agents.
I'm in an Incorporated Village with it's own police force (all six of them), they *may* be able to issue tickets on private and semi-private property like commercial parking lots. If I remember, I'll ask one of them next time I have to stop by their station.
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Choose your poison...
If you raise your hands I'll shoot...
BLINK YOUR EYES IF YOU WANT ME TO SHOOT YOU
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Re: Choose your poison...
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Also, it's nothing but spam. Just like "why was this truth censored?" is getting to be.
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Fuck that passive-tense implicit "both sides" phrasing. The situation didn't escalate. The uniformed idiot unilaterally escalated it.
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I hate doing other people's digging
Strand was charged in May 2013 with disarming a law enforcement officer, battery resulting in bodily injury and resisting law enforcement. A Lake Criminal Court jury convicted Strand in August of battery resulting in bodily injury but acquitted him of the other charges."
https://www.nwitimes.com/news/local/lake/man-in-prison-for-attack-on-officer-files-excessiv e-force/article_bce91216-aeb6-539d-9e7a-f1668ce3a6ad.html
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'He's one of us, he's right by default.'
Of course they did...
That? That's a perfect example of why people have such low opinions of police. Charge the victim of an attempted robbery/assault/murder, and decide that nothing their would-be-murderer with a badge did was at all problematic.
Message sent and received, loud and clear. 'Stay the hell out of northwest indiana, the cops can do whatever they want, up to and including attempting to murder you, and the local courts will look the other way.'
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Re: 'He's one of us, he's right by default.'
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And let's not kid ourselves, this police state thug will not receive the same punishment one of us plebs would if we did the things he did.
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Police should be subject to harsher penalty, not relaxed.
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