Aurora shooting of innocent man: will federal law provide a remedy?

Richard “Gary” Black was a decorated Vietnam veteran. He also lived in Aurora, CO, where city officials permit officers to kill citizens and resume their duties before the investigation into the killing is completed.

On Monday, this practice resulted in Mr. Black being gunned down by an Aurora police officer while Mr. Black was defending his home and grandson from a naked intruder. Story here.

Mr. Black called police because the intruder had broken into the home and attacked his family, and in the process, Mr. Black justifiably used deadly force to stop the intruder.

However, in a tragic turn of events, the responding officers mistook Mr. Black for the intruder and opened fire, killing him instead.

While the shooting is undeniably tragic, the open question is whether the shooting was unlawful.

Answering that question requires a close examination of the particularized facts of this shooting, compared to existing case law on the use of deadly force.

First, absent a prior case involving substantially similar circumstances, the officer will get the benefit of qualified immunity under federal law, regardless of whether the shooting is deemed unlawful.

Second, even assuming the officer is not entitled to qualified immunity, the family will still need to show that the officer acted unreasonably.

This two-prong test operates to defeat a majority of claims either because the law is not clearly established, or because the officer’s actions are deemed objectively reasonable.

In this case, the reasonableness of the shooting will likely turn on what the officer knew at the time of the shooting, and his location at the time he fired on Mr. Black.

If the family can show the officer knew the intruder was already incapacitated, and further show the officer had a description of Mr. Black and the intruder, those facts make it more likely that the officer’s conduct was unreasonable.

Similarly, reports indicate the officer shot Mr. Black inside the home while the officer was still outside. The location of the officer may support the inference that his conduct in shooting into the home was reckless and indiscriminate, which would not support the claim that the shooting was objectively reasonable.

If you have questions about police shooting, police misconduct, or the use of excessive or deadly force, contact the attorneys at Bryan and Terrill, 970-736-7171.