When shots rang out at the Galleria Mall in Birmingham, Alabama, two things happened at pretty much the same time. Two police officers went toward the sound of gunfire, and one Good Samaritan drew his legally carried handgun and went toward the sound of gunfire to help. That was the last thing the Good Samaritan, EJ Bradford, did.
On Thanksgiving night in 2018, David Alexander—a policeman with the City of Hoover—was on foot patrol with his partner in the Galleria Mall in Birmingham, Alabama. During a suspected active shooting situation, and within seconds after gunshots had been fired in the Mall, Officer Alexander saw Emantic “E.J.” Fitzgerald Bradford moving towards two men (who appeared to be shooting victims) with a gun in his hand and at his side. Without issuing a verbal warning, Officer Alexander shot and killed Mr. Bradford when he was about ten feet away from the two men. It turns out that Mr. Bradford was legally authorized to carry his gun pursuant to a permit issued under Alabama law and was going towards the sound of the shots in an attempt to provide assistance.
As representative of her deceased son, April Pipkins brought suit under § 1983, contending that Officer Alexander’s failure to issue a warning before firing, thereby providing Bradford with the opportunity to drop his lawfully-carried weapon, violated his Fourth Amendment rights. But the outcome was clear in the opening quote of Eleventh Circuit Judge Adalberto Jordan’s opinion.
“In the mind of the police officer, the lawfully-carried gun can kill just as easily as the illegal one; it is never more than a moment away from doing so.” Brandon de Pozo & Barry Friedman, Policing in the Age of the Gun, 98 N.Y.U. L. Rev. 1831, 1867 (2023).
As noted here too many times, this is the “reasonably scared cop rule” of Graham v. Connor in action. But as the court noted, the issue wasn’t simply the officer’s “objectively reasonable fear,” but that fear coupled with a warning.
Generally speaking, a law enforcement officer is permitted to use deadly force if he “(1) has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, (2) reasonably believes that the use of deadly force was necessary to prevent escape, and (3) has given some warning about the possible use of deadly force, if feasible.” Perez v. Suszcynski, 908 F.3d 1213, 1218–19 (11th Cir. 2016) (internal quotation marks and citation omitted).
In the finest tradition of the law giving, and taking away, the last two words quoted above present the kicker: If feasible. There was neither a physical impediment nor language barrier that precluded Alexander from shouting “drop your gun.” And, according to the plaintiff’s expert, that was standard police practice.
Nicholas Bloomfield, an expert for Ms. Pipkins, provided an opinion on the use of deadly force by Officer Alexander. As relevant here, he opined that Officer Alexander’s failure to provide a verbal warning before shooting Mr. Bradford was “unreasonable, tactically unsound, and contrary to generally accepted police practices.”
But as the court held, that was not the test of the “reasonably scared cop rule.”
In our view, Officer Alexander was “‘forced to make [a] split-second judgment[ ]’” as to whether Mr. Bradford posed a threat of serious physical harm to others. See Kisela v. Hughes, 584 U.S. 100, 103 (2018) (quoting Graham, 490 U.S. at 396–97). “Perspective . . . is crucial to the analysis, and the only perspective that counts is that of a reasonable officer on the scene at the time the events unfolded.”
What might be objectively reasonable from the perspective of someone considering the action after the fact, such as Nicholas Bloomfield, does not resolve the question of what was reasonable to the cop in the moment.
To a reasonable officer under the circumstances, Mr. Bradford was not a “fleeing non-dangerous suspect in a non-violent crime,” Powell v. Snook, 25 F.4th 912, 923 (11th Cir. 2022), or a Good Samaritan trying to render assistance, but rather an armed man in an enclosed crowded space, where gunshots had just been fired, moving toward two men, one of whom appeared injured. Officer Alexander, in other words, had probable cause to believe that Mr.
Bradford was the shooter and a serious threat even though he was not in a “ready fire” position.
Was it possible that Bradford, had he been the shooter rather than a Good Samaritan running to the rescue, could lift his gun and fire in a split second? Sure. Was it possible that Bradford, had Alexander yelled a command to drop the gun, could have whirled around and fired at Alexander? Sure. Was the fact that Bradford was not in a “ready fire” position, such that there was reason for Alexander to believe that he was neither prepared to fire nor intending to fire relevant to the decision Alexander made to shoot rather than warn? Absolutely.
But the point of the rule of Graham v. Connor is that as long as the shooting was not unreasonable from Alexander’s perspective, the failure to warn is not feasible.
Officer Alexander testified at his deposition that it was physically possible to provide a warning in the span of a three-to-five second timeframe, but a warning was not feasible under the circumstances. The feasibility of a warning is dependent on many variables, two of which are the proximity of the danger to the officer or others and the time available to the officer.
Here, both of these variables weigh against the feasibility of a warning. First, at the time Officer Alexander fired his weapon, Mr. Bradford was just ten feet away from the two men near the railing and was running in their direction with a gun ahead of Officer Alexander and his partner. Second, Officer Alexander had very little time to react; only five seconds elapsed from the sound of the first two gunshots to his use of deadly force, and only two to three seconds elapsed from the time Officer Alexander saw Mr. Bradford running with a gun towards the two men. Mr. Bradford was armed with a gun, and nothing prevented him from shooting at the two men (or anyone else) in an instant.
Should Officer Alexander have first ordered Bradford to drop his weapon before killing him? Had he done so, a Good Samaritan who was doing nothing wrong, lawfully carrying a gun and running toward a shooting to provide assistance, would still be alive. But as far as Alexander was concerned, there was no time and too much risk involved to warn, and so he was too reasonably scared for the warning that would have saved Bradford’s life to be feasible.