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Fifth Circuit Rejects Police Shooting Qualified Immunity Defense

Oct. 3, 2022, 4:00 PM

An Arlington, Texas, police officer, must face the excessive force claim by the estate of a father he shot after the car he was driving was stopped because his two-year-old daughter threw a plastic candy cane out of the window, the Fifth Circuit said.

The district court erred by granting officer Craig Roper qualified immunity because questions existed regarding the severity of the crime involved and whether Tavis Crane posed a threat and was resisting arrest, the Sept. 30 opinion by Judge Patrick E. Higginbotham said. It was also clearly established at the time that “using deadly force on an unarmed, albeit non-compliant, driver held in a chokehold in a parked car was a constitutional violation,” Higginbotham said.

Crane was driving and his daughter and two adult passengers were in the car when Officer Elise Bowden saw an object that looked like a crack pipe tossed out the back window and pulled the car over.

As Bowden approached, she saw the red top of a large plastic Christmas candy cane fall out of the car and realized that what she saw thrown earlier was the toy’s clear bottom half. Bowden still ran Crane through her computer and it came back with misdemeanor warrants against him and possibly a felony probation violation, which she couldn’t confirm.

Roper and Officer Eddie Johnson arrived and the three officers asked Crane to get out of his car. When Crane refused, Roper drew his gun, climbed in the backseat of the car, and grabbed him by the neck. Bowen told Roper to get out of the car. According to the other passengers, when Crane moved his hand to turn the car off, Roper shot him, the car lurched, and Roper shot him three more times in the abdomen.

Evidence Considered

The district court looked at the dashcam video from Bowen’s car and decided that Roper was entitled to qualified immunity. But the US Court of Appeals for the Fifth Circuit said that the video was inconclusive.

Instead, the appeals court said that Roper isn’t entitled to qualified immunity based on Crane’s account of the events, and the passengers said Crane was shot while unarmed with Roper’s arm around his neck.

Roper’s contention that he feared Crane was armed or that the car posed a threat were rejected by the court. No evidence indicated Crane was armed and the question whether the car was a threat was a question for the jury, it said.

Roper was trying to arrest Crane, who was unarmed, for five misdemeanors and an unconfirmed felony probation violation, the court said. It was clearly established at the time that he couldn’t use deadly force to do that, it said.

Judges James L. Dennis and James E. Graves Jr. joined the opinion.

Durham Pittard & Spalding LLP and Daryl Kevin Washington of Dallas, represented Crane’s estate.James Thomas Jeffrey Jr. of Arlington, Texas, represented Roper.

The case is Crane v. City of Arlington, 2022 BL 350984, 5th Cir., No. 21-10644, revised opinion filed 10/4/22.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com