A federal appeals court yesterday dismissed a lawsuit by the sister of Juston Root, shot 31 times in 3 seconds by Boston and State Police officers along Rte. 9 in Brookline in 2020, ruling that the officers had more than enough reason to fear for their lives and the lives of nearby people, both because he had pulled what appeared to be a gun on officers outside Brigham and Women's Hospital and because when the officers approached they thought he was about to pull a gun on them.
The ruling was not unanimous. One of the three appellate judges who heard the case said testimony by the officers and by a woman who rushed to help a staggering Root after he stumbled out of his car but before the police arrived was inconsistent and that actions by officers during and after the shooting - some of the Boston cops had their body-worn cameras off or obscure and huddle together for an hour before talking to investigators - were sufficient reason to let Jennifer Root Bannon's wrongful-death suit go to trial.
All three judges did agree to dismiss Bannon's case against the Boston Police Department, concluding that the fact that one officer disregarded department policy and slammed his cruiser into Root's car in an attempt to stop him on Huntington Avenue was his fault, not the department's, because the department had properly trained officers on how to pursue a suspect - Root drove from the hospital down Rte. 9.
In the majority ruling, US Court of Appeals for the First Circuit Judges Gustavo Gelpí and Sandra Lynch concluded a lower-court judge had been correct in dismissing the suit, that the officers "acted reasonably" and did not violate Root's Fourth Amendment rights, so the principal of qualified immunity holds.
Root's death started in an incident on Vining Street in the Longwood Medical Area on the morning of Feb. 7, 2020, when Root confronted and chased Brigham and Women's guards with what appeared to be a gun and then two Boston police officers, approaching him from opposite sides, shot at him. At least on of the 15 rounds they fired hit Root; another hit a hospital valet about a half block away.
Root then got into his car and drove, at first at the speed limit, up to and then down Huntington Avenue towards Brookline, until a BPD officer in pursuit tried to ram his car, at which point he got up to 90 m.p.h. or so down Rte. 9, as Boston officers, joined by a state trooper raced after him. He came to a stop just past Hammond Street on a mulched area between the highway and the Star Market parking lot, where officers and the trooper got out and, after yelling at him to drop his gun, fired 31 shots in three seconds, killing him.
Each of the officers reasonably believed that Root was armed with a gun. ... The officers also had every reason to believe Root posed a continuing and immediate threat to them and the public: Officer Godin had witnessed Root fire his gun at him at BWH. Just moments before the shooting, Root had "led [the officers] in a car chase" through an urban area at high speeds, ignoring the officers' "attempt[s] to pull him over," "act[ing] with complete disregard for [the officers'] safety or the safety of anybody else that might have been on the street," and causing a serious collision. ... And throughout his interactions with the officers, Root did not comply with lawful orders meant to defuse the situation and eliminate the danger he posed. These included commands to drop his weapon at BWH, to stop and show his hands following the PIT maneuver [the cop ramming his car], and to show his hands immediately before the shooting in Brookline.
They added:
We reject Bannon's argument that it was the officers, not Root, who created this situation by closing in on Root's position rather than seeking cover behind their cruisers, creating a perimeter, or delaying in order to assess the situation. A use-of-force expert retained by Bannon opined that the choice to follow Root into the mulched area did not comply with "standard police practices." As the case law makes clear, in situations such as this that opinion entirely misses the point of the legal test. "[T]he Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases," and "a jury does not automatically get to second-guess these life and death decisions, even though the plaintiff has an expert and a plausible claim that the situation could better have been handled differently." Roy, 42 F.3d at 695 ...
Video footage shows the incident unfolding in a public place between Route 9 (on which a steady stream of traffic was moving) and a shopping center parking lot. A reasonable officer would conclude that Root, known to be armed with a gun, would endanger the officers and nearby members of the public if not quickly apprehended. See Roy, 42 F.3d at 696; Dean v. City of Worcester, 924 F.2d 364, 368 (1st Cir. 1991) (officers encountering suspect in public area had good reason to "effect the intended arrest with . . . alacrity").
Bannon's appeal, in the end, comes down to an argument that the officers and an independent witness did not see what they consistently testified to and say they saw: that, just before each of the officers made the decision to fire, Root appeared to reach for a gun in his jacket. That movement, under the undisputed circumstances, would lead reasonable officers to conclude that Root posed an immediate threat to the safety of both the officers and the nearby public. See, e.g., Lamont, 637 F.3d at 183 (holding that officers reasonably employed deadly force where an apparently armed suspect made "a movement uniformly described by those on the scene as being similar to that of drawing a gun").
In her dissent, however, Judge Lara Montecalvo said the events leading up to and after Root's death are very much disputed, to the point it should be left to a "factfinder," that is, a jury, to decide Bannon's claims, starting with conflicting statements on just how police found Root once they arrived at the parking lot:
It is readily apparent that the officers' accounts contain many inconsistencies as to Root's movements directly before the shooting. While some officers stated that Root was seated or kneeling, others recalled Root standing on two feet, and one officer first testified that Root was standing but later said that Root was merely attempting to stand. There were also officers who testified that Root's hand was by his chest the entire time, while others said Root moved his hand up to his chest. Some of the officers observed Root reaching into his jacket, others testified that they fired because Root was removing his hand from his jacket, and yet another officer testified that shots were fired because Root was reaching into his jacket but later said shots were fired after Root began pulling his hand out of his jacket.
And was Root seeming to reach for a gun - even if it turned out to be a BB gun - when officers began shouting at him to get down? Montecalvo notes that a Brigham and Women's doctor, who happened to be driving down Rte. 9 on his way to work at the time, said he saw Root reaching into his jacket and then turn around as the officers approached. The problem: None of the officers said they saw Root turn. And then there was the testimony of a woman, who had EMS training, who rushed to Root and who said he was in no position to cause a threat to anyone: He was lying on his back, covered in blood, his breathing came only with gurgling sounds and his eyes were rolled back in his head.
None of the officers stated that Root was faced away from the officers at any point or that Root ever changed the direction he was facing. McCarthy's [the woman's] testimony also indicates that when the officers approached her and Root the officers were within Root's line of sight, further evidencing that Root was initially facing towards the officers. In and of itself, the inconsistencies in the testimony regarding Root's movements (particularly when paired with McCarthy's testimony) create genuine issues of material fact as to what Root's movements were just prior to the shooting. However, the inconsistencies also raise questions as to the credibility of the officers, as does other evidence in the record.
Even the state of the BB gun found by Root's side was an issue, she wrote: An expert witness testified that the BB gun was not covered with blood or damaged in the barrage of gunfire, which it likely would have been had Root had it in his jacket at the time.
