Court dismisses suit against FBI agent and Boston cop for fatally shooting suspected ISIS terrorist in a Roslindale parking lot

A federal appeals court ruled Thursday that two law-enforcement officers who fatally shot a man in a Roslindale parking lot as he walked toward them with a large knife, taunting them, are protected from a lawsuit by the man's family because of "qualified immunity" - they were acting in the course of their job to protect themselves and bystanders and had no reason to believe they were doing anything wrong.

In a 2-1 decision, the US Court of Appeals for the First Circuit in Boston agreed with a request from the two to dismiss the lawsuit by the family of Usaamah Rahim.

Rahim's family had charged the officers violated his Fourth Amendment rights by shooting him to death on the morning of June 2, 2015 in the parking lot of the CVS on Washington Street, because they did not know he was holding a large knife and they failed to try to take other possible, less lethal actions, such as stopping him earlier or first getting a warrant to seize the knife.

Rahim was already being monitored by the FBI's Joint Terrorism Task for hatching a plan to travel to New York with others to murder anti-Muslim radical Pamela Geller. Early that morning, agents overheard him on a phone call to another cell member saying he couldn't wait and would instead act locally to take out some cops. The FBI agent and the BPD cop - working with the task force - were directed to Washington Street, to try to prevent him from boarding a bus to Forest Hills from a stop in front of the CVS.

Justices Sandra Lynch and Gustavo Gelpí summarized what happened between Rahim and the two officers, identified only as John Doe 1 and John Doe 2, after Rahim walked to the bus stop from his apartment on nearby Blue Ledge Drive:

Shortly after 7:00 a.m., the surveillance team watched Rahim leave his apartment and walk toward the nearby bus stop on Washington Street. As Rahim walked toward the bus stop, he placed a call on his cell phone, speaking first with his brother, Muhammad Rahim, and then with his father, Abdulla Rahim. Rahim told his brother: "Unfortunately, you will not be seeing me again." The record does not reveal whether the officers planning to intercept Rahim were aware of the contents of this conversation. As Rahim approached the bus stop, still on the phone, he was approached by Doe 1, Doe 2, and other members of the surveillance team. The record is unclear as to whether the officers identified themselves and whether they approached with their weapons already drawn.

Rahim's own phone then recorded the exchange between him and the two law-enforcement officers. They told him to put his hands up, but he refused, and then they told him to drop whatever he had in his hand. He told them to drop their guns. He began advancing on him. They retreated. They again told him to drop the object in his hand. He again refused and kept walking towards them, telling them to drop their guns. At one point, he yelled, "Come on! Won't you shoot me?" After several such exchanges and continued advances by Rahim, the officers were at one edge of the parking lot.

Rahim kept advancing and came within twenty-five feet of the officers. Just seconds before the shooting, Rahim had refused to put his hands up, had refused to drop what was in his hand, had taunted the officers telling them to drop what was in their hands, and had taunted them more with his "Come on!" statement. An objective officer would conclude Rahim had chosen to escalate the situation and that Rahim was an increasing threat. And Rahim's actions were consistent with his words: he kept advancing on the officers, despite their attempts by retreating to not let him close the distance. When he had come close enough to them to be a lethal threat to the officers and others, they had split-second decisions to make about what was needed to stop him. And two officers almost simultaneously reached the same decision. Doe 1 fired twice and Doe 2 fired once. Rahim was hit. The entire encounter unfolded over about thirty seconds.

The majority on the court then analyzed each step of the interaction leading to the shooting and concluded the officers were protected by the concept of qualified immunity.

We hold independently that the officers are entitled to qualified immunity because objectively reasonable officers in their position would not have understood their actions to violate the law. ... We hold further that a reasonable officer in this situation would have understood Rahim to have a lethal knife in his hands. We also hold that a reasonable officer, on the undisputed facts, would have understood Rahim's actions to show that he had every intention to use this knife to kill the officers and, if they were unsuccessful in stopping him, to kill other people.

Chief Judge David Barron dissented from the ruling, saying it was premature to dismiss the case since the family's lawyers had not yet had a chance to question the agent and the officer.

Although he acknowledged it seemed like there was strong case that the two had gone to the parking lot to intercept a man who had plotted to behead somebody and who was likely armed with a large knife when he moved toward them, the statements had not been put to the test through the sort of adversarial questioning that might come in discovery or at trial.

The Estate contends ... that the record is not clear in conclusively establishing that the officers reasonably thought that Rahim was holding in hand or reaching for a deadly weapon when they fired on him. And, I agree with the Estate on that score. Thus, I conclude that the summary judgment record -- at least in its present state -- permits a reasonable juror to find that the officers' use of deadly force against Rahim was excessive under clearly established law. ...

There is literally nothing in the record on appeal that purports to state the officers' own views on that matter, and we must construe the record as it comes to us in the light most favorable to the Estate, because the Estate is the non-moving party. ... In addition, qualified immunity does not protect those who are asserting it from discovery about the information that they in fact "possessed at the time of [their] allegedly unlawful conduct" if their possession of that information would bear on whether the immunity applies.

He added:

Qualified immunity prevents many claims of excessive force from succeeding precisely because of the in-the-moment nature of the judgment that officers attempting to subdue suspects must make. It does not permit courts to credit, though, the untested accounts that defendants accused of excessive force offer when the plaintiff has been denied any chance to test those accounts. [through questioning of participants in the incident] ...I am convinced that it is plausible that such testing would reveal a genuine factual dispute about whether the officers thought Rahim had a weapon in hand (or was reaching for one) during their deadly encounter with him.