Without reasonable suspicion or probable cause, you cannot legally detain a subject during a consensual contact.

Multiple videos on the Internet show officers not making a decision when asked by a citizen if they are free to go. There are only two answers "yes" or "no," and the answer is based on your evaluation of the known circumstances at the time of the stop. Why are officers unsure of the answer? Let's look at a recent case out of the 6th Circuit Court of Appeals.

In Wilkerson v. Danzy, the court reviews the requirements necessary to support a proper Terry stop and the problems that can arise when the court's review of video footage leads the court to find that a jury might have a different opinion of the suspect's "furtive" movements. However, Wilkerson v. Danzy is not a simple "Terry Stop" case. During the course of the encounter, officers struggled with the suspect, the suspect's gun discharged, and the officer shot and killed the suspect.

The Case

Off-duty Akron, OH, Police Officer Howard Vaughn observed an SUV parked in his neighborhood with a flat tire and two men sitting in the front seats. When Vaughn returned from his errands, he observed the two men—Rauphael Thomas and Jesse Gray—standing in his driveway and the SUV was gone. Vaughn asked the men if they needed assistance and they replied that they were OK. Several minutes later Vaughn looked out his window and saw the two men standing in his neighbor's driveway.

Concerned that the two men might be "casing houses in the neighborhood," because of recent house breaks, Vaughn called the station and asked for a unit to check on the two men. On-duty officer Joseph Danzy responded to the scene and observed the two men standing on the grassy strip between the sidewalk and the street. Thomas and Gray walked up to the hood of Danzy's cruiser, pointed down the street and said "something about a flat tire." Thomas then turned away and took two steps before Officer Danzy told him to stop. Danzy later testified that Thomas appeared nervous, was looking around, and pivoted away from Danzy, which Danzy described as "blading."

Based on the information provided by the off-duty officer and Thomas' behavior, Officer Danzy decided to stop Thomas and pat him down as a second officer arrived on the scene. Officer Danzy and the second officer attempted to put Thomas up against the cruiser and control his arms. However, a struggle ensued and both the officers and Thomas fell to the ground. Officer Danzy claimed that Thomas was holding a .25 caliber pistol and as they wrestled for control of the weapon a shot discharged.

After the shot fired, Thomas jumped up and began running away and Officer Danzy testified he fired two rounds believing that Thomas was an "active threat." Thomas fell to the ground and the officers then handcuffed him and recovered the .25 caliber pistol that was lying next to him. The officers called for an ambulance, but Thomas died from his wounds an hour after arriving at the hospital.

The Plaintiff's Claim

Sherry Wilkerson, Rauphael Thomas' mother, was the administrator of his estate. She filed a civil suit alleging a Section 1983 claim and state tort claims alleging that:

•             The officers conducted an improper stop and frisk of Thomas;

•             The officers used excessive force when they shot Thomas;

•             The officers violated Thomas' 14th Amendment protections by showing deliberate indifference to Thomas' shooting injuries; and

•             State assault and battery and wrongful death claims.

The trial court denied the defendant officer's motion for qualified immunity with respect to the stop-and-frisk claim and also denied Ohio statutory immunity for the assault-and-battery claim. The trial court determined that the jury could find that the officer lacked reasonable suspicion for the Terry Stop and, therefore, the force used during the initial stop was not defensible under Ohio law. With respect to the claims related to the shooting, the court granted the officer's qualified immunity and state immunity claims finding that the use of deadly force was justified under the circumstances. The court also dismissed the deliberate indifference claim finding that the officers provided reasonable medical care.

Both Wilkerson and the defendant officer appealed the trial court's ruling.

6th Circuit Findings

As you can see from the trial court's ruling, there are two parallel issues going on in this case. The first issue involves the Terry Stop and use of force by the officers to attempt to control Thomas during that initial stop. The second issue involves Officer Danzy's use of deadly force following the struggle and apparent attempts by Thomas to use his weapon.

The 6th Circuit provides us with a split decision in this case:

The 6th Circuit agreed with the trial court, finding that the use of deadly force by the defendant officer was reasonable under the circumstances. Just before the officer fired, the officers were struggling with a suspect who was apparently armed and a shot was discharged and, therefore it was reasonable for the officer to believe the suspect posed an immediate threat to both officers. The appellate court also agreed with the trial court that the officers took reasonable actions to provide medical aid following the shooting.

However, the appellate court also agreed with the trial court concerning the initial stop and the use of non-lethal force during that stop. As we know, we do not need reasonable suspicion or probable cause to initiate a consensual citizen contact. However, once the citizen's liberty is restrained or we prevent the citizen from walking away, we need sufficient facts to form reasonable suspicion that a crime is or has been committed. Here, the officer argued that the call from the off-duty officer, Thomas' "blading," and prior burglaries in the area supported reasonable suspicion. The court disagreed.

Reviewing the dashboard camera footage, the court agreed with the trial court that a jury could reasonably find otherwise, stating:

At the very least, a jury could watch Thomas's behavior and disagree with Danzy that the objective officer would perceive furtiveness and reasonably suspect criminality or dangerousness. Walking away from a consensual conversation with an officer is not in itself enough to justify reasonable suspicion. Otherwise, why call it consensual? It is for the jury to decide if they believe that the objective officer would share Danzy's interpretation of what looks like "a permissible walk away from a police officer."

Lacking reasonable suspicion to conduct the stop in the first place, the defendant officer could not avail himself of the state immunity protections for the use of less-lethal force during the initial stop.

This case will go back to the trial court where the reasonableness of the officer's initial stop may be left to the jury. As we have seen in many of our past cases, video footage continues to play a pivotal role in either supporting or not supporting the officer's version of the facts.

As the court stated here –

It has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and frisk a law-abiding citizen, lingering on the side of a road does not constitute such evidence—even late at night, in a high-crime area, without a nearby car, and without evident purpose. Neither does walking away from an officer—even after refusing to answer questions, or for that matter hurriedly, in the middle of the night, in a high-crime housing project"

The court brings up two important points. Absent reasonable suspicion or probable cause, the citizen has the right to walk away during a street contact and you cannot employ force to restrain the citizen.

Eric Daigle is founder of Daigle Law Group, LLC, a firm that specializes in law enforcement operations. A former Connecticut State Police officer, Daigle focuses on civil rights actions, including police misconduct litigation. He is a legal advisor for police agencies across the country. www.daiglelawgroup.com .