“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Tenth Circuit Trump judge Allison Eid cast the deciding vote in a February case that protected a police officer from being sued for excessive force by the estate of the man he had killed. Marquez Smart had done nothing wrong, was unarmed, and like the rest of the crowd around him, was running away from gunfire when officer Lee Froese shot him. The case is Estate of Smart v. City of Wichita.

Smart, an African American man, was one of hundreds of people leaving a concert venue at closing time. Officer Froese and others were in the area for “routine crowd control.” As alleged by the estate, there was a gunshot that came from somewhere not near Smart, and the crowd started running. Multiple witnesses saw Smart and did not see him carrying a gun.

After the first shot, Officer Froese turned and saw an African American man in a yellow shirt shoot a gun twice. (The crowd of hundreds was mostly African American, and yellow Wichita State clothing was common in the area.)  Froese testified that it was Smart that he had seen shoot the gun. As Smart ran, Froese shot at him once, which slowed him down. When the officer was five feet directly behind Smart, he fired four times in rapid succession, and Smart fell to the ground. After that, a second officer shot the helpless unarmed man three times, killing him. (The panel unanimously agreed that this second officer did not have qualified immunity for firing those last shots.)

Judge Eid joined the majority in concluding that—even if the officers had been unreasonable to believe that Smart was armed—there was no “clearly established law” putting them on notice that shooting him was unlawful. They characterized the situation as a “chaotic” one with an “active shooter,” using that as a way to distinguish it from other unreasonable uses of deadly force that courts had previously found unconstitutional. Therefore, according to Eid, a reasonable police officer would not have had “fair notice” that shooting Smart violated his constitutional rights.

Judge Robert Bacharach dissented, explaining straightforwardly why the court should have denied qualified immunity:

The majority acknowledges that a factfinder could regard the officers’ mistakes as unreasonable. … In my view, any reasonable official would have understood the illegality of unreasonably shooting a person who is unarmed, nonthreatening, and running away.