SPECIAL REPORT-When cops and America’s cherished gun rights clash, cops win

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SPECIAL REPORT-When cops and America’s cherished gun rights clash, cops win

The night a cop killed Andrew Scott started out like many others had for the 26-year-old pizzeria worker. Home from his evening shift, he and his girlfriend, Miranda Mauck, ate a late supper and spent several hours watching television and playing video games. Then, around 1:30 a.m., as the two sat talking in T-shirts and underwear, they were startled by a loud knock at the door. We “looked at each other and jumped up real fast,” Mauck said in an interview.

As they rushed to throw on some clothes, the knocking came again. Scott grabbed the 9mm semi-automatic pistol he kept at home for the couple’s safety. With Mauck close behind, Scott approached the door, which had no peephole. He opened it with his right hand, the gun in his left. They barely had time to take in the four sheriff’s deputies standing at the door with guns drawn when six shots rang out. “They didn’t even say anything, they just started shooting,” Mauck said.

Three bullets struck Scott. He stumbled backward and collapsed onto the sofa where minutes earlier he and Mauck had sat playing video games. “They shot me. They fucking shot me. I’m dying,” he said, according to Mauck. The shooter, Lake County Sheriff’s Deputy Richard Sylvester, and his three fellow officers had made a fatal error. They had the wrong place. They had trailed a suspect in an alleged assault to the Blueberry Hills apartment complex on the outskirts of Leesburg, Florida, about 50 miles northwest of Orlando. The suspect, who the officers believed was armed, had parked his motorcycle in front of Scott’s apartment, its engine still warm.

Despite that mistake, Sylvester was not disciplined or criminally charged in the July 15, 2012, killing. “A FATEFUL DECISION

Mauck and Scott’s parents filed a lawsuit in federal district court against Sylvester and the sheriff’s office, accusing the deputy of violating Scott’s civil rights under the Fourth Amendment to the U.S. Constitution, which protects against illegal search and seizure. Judge Anne Conway let Sylvester off the hook, too. Her main reason: Scott’s gun. “Andrew Scott made a fateful decision that night: he chose to answer his door with a gun in his hand. That changed everything. That is the one thing that — more than anything else — led to this tragedy,” Conway wrote in her Sept. 18, 2014, decision to toss out the lawsuit.

Conway’s ruling lays bare a sometimes tragic conflict inherent in the U.S. legal system. This conflict, fostered by the Supreme Court in recent years, pits Americans’ cherished gun rights against formidable legal protections for police accused of excessive force in the country with the most heavily armed citizenry in the world. When that conflict plays out in court, as it did in the Scott case, cops often win. The Second Amendment to the U.S. Constitution guaranteed Scott’s right to have a gun. Under a landmark 2008 Supreme Court ruling, District of Columbia v. Heller, he had an explicit right to keep and use a gun for self-defense at home.

None of that mattered, in the end. It was trumped by Sylvester’s claim that he was protected by qualified immunity, a controversial legal doctrine the Supreme Court created 50 years ago to shield police and other government officials from civil liability for actions undertaken on the job. In her decision, Conway determined that Sylvester was legally justified to use deadly force because Scott was holding a gun, and that the officer was thus entitled to immunity. Conway’s decision was later upheld by the 11th Circuit Court of Appeals. The courts’ rulings meant, in effect, that Scott gave up his Fourth Amendment rights when he exercised his Second Amendment rights.

Police using deadly force against lawfully armed civilians is an inevitable result of having an “armed society” in the United States, said Adam Winkler, a professor at the UCLA School of Law and an expert on gun policy. “When you have a right to have arms, you have a right to carry around something other people would see as a threat,” Winkler said. “Generally, we allow police officers to use force when they feel threatened. And merely possessing a gun raises that threat.” THE IMMUNITY HURDLE

In an investigation published in May, Reuters revealed that federal appeals courts have in recent years been granting qualified immunity at an increasing rate to cops sued for excessive force — even when courts determine that police actually did use excessive force. The increase largely reflects the impact of a series of Supreme Court interventions that have made it harder for plaintiffs to breach the immunity defense, prompting widespread calls for the doctrine to be reined in or eliminated altogether on the grounds that it denies justice to victims of police brutality. Hundreds of appellate court cases Reuters analyzed show that judges granted immunity to cops more often when they used force against a person with a gun — in 55% of cases, compared to 45% when the person was unarmed. Of course, the details of those cases vary greatly, some of them involving violent criminals in chaotic and dangerous encounters with police.

Still, Reuters found multiple cases in which courts granted immunity to cops who killed armed civilians who posed a questionable threat, including people who legally possessed guns for self-defense at home. In all the cases, officers said they acted reasonably in what they perceived to be dangerous situations. –On June 28, 2013, two Pennsylvania state troopers, responding to a domestic disturbance call, shot and killed 50-year-old Shawn Knight. Relatives told the officers upon arrival that the situation had calmed down, but when one cop entered the house unannounced and without a warrant, he awakened a napping Knight, who emerged holding two guns. One of the officers who fired said Knight was pointing a gun at him. Other witnesses disputed that.

–On Sept. 12, 2016, a Santa Clara Sheriff’s Department officer shot and killed Eugene Craig after the officer and three others conducting a wellness check on the 86-year-old – he and his wife hadn’t been answering their phone – forced their way into his California home and encountered him holding his revolver as he came around a corner. The officer said Craig was pointing the gun at him. –On Oct. 4, 2011, a New Mexico State Police officer shot and killed Samuel Pauly in his home in Glorieta, New Mexico. Pauly, 34, and his brother, Daniel, announced they were armed as three officers, investigating an earlier road rage incident involving Daniel, approached the home. The officers said that Daniel Pauly fired his weapon and that Samuel Pauly pointed his gun at one of them. Daniel Pauly said the brothers did not know the men were cops.

–On Dec. 9, 2011, police in Lafayette, Louisiana, were responding to a 911 call when they encountered Quamaine Mason as the 21-year-old was leaving his girlfriend’s apartment. Mason, who had a gun in his waistband, raised his hands and then lowered them when a police dog leapt at him, and the officer handling the dog shot Mason seven times, killing him. –On Jan. 16, 2015, an off-duty Houston cop shot and killed Phillip Garcia Jr after the 26-year-old grabbed a handgun for protection from his car during a fight outside a sports bar. Witnesses said Garcia didn’t point the gun at anyone, and one said Garcia had his hands above his head when confronted by the officer. A court determined that the threat Garcia posed was questionable, but granted the officer immunity on the grounds that Garcia didn’t drop the gun when ordered to do so.

Cases like these are why some gun rights advocates want qualified immunity to be reined in. “These cases are rare, but they shouldn’t happen at all. When they do happen, law enforcement should be held liable,” said Alan Gottlieb, founder of the Second Amendment Foundation, a Bellevue, Washington-based group that filed a brief in support of Mauck and the Scott family’s failed attempt to appeal their case to the Supreme Court. Gottlieb said police officers should not be able to cite the mere presence of a gun as a threat that justifies the use of deadly force. Another gun rights group, the Firearms Policy Coalition, based in Sacramento, California, also favors reform of qualified immunity, Director of Legal Strategy Adam Kraut told Reuters. The National Rifle Association, the most influential U.S. gun rights group, did not respond to requests for comment on the issue.

UNLIKELY ALLIES In their opposition to qualified immunity, gun rights groups, typically supportive of police, find themselves allied with a broad coalition spanning the political spectrum, including gun control advocates.

Everytown for Gun Safety, a group financed by former New York City Mayor Michael Bloomberg that pushes for stricter gun controls, says that making it easier to hold cops accountable for excessive force could help reduce gun violence. If cops knew they might be held financially liable for their actions, the thinking goes, they might be less inclined to escalate in encounters with armed civilians. Some high-profile incidents that have become rallying cries in the Black Lives Matter movement have helped draw public attention to the clash of policing and the Second Amendment.

Last year, a cop in Fort Worth, Texas, shot and killed Atatiana Jefferson, a Black woman, through a window in her home after she heard noises outside and picked up her handgun. In a suburb of St. Paul, Minnesota, a police officer in 2016 shot and killed Philando Castile, a Black man, during a routine traffic stop just after Castile revealed he was licensed to carry a gun. And in Louisville, Kentucky, in a case dominating headlines this year, cops executing a no-knock warrant in March shot and killed Breonna Taylor, a Black woman, in her home after her boyfriend fired his gun in self-defense. These cases, amid national media attention and public outrage, led to criminal charges against the cops involved and large settlements for the Taylor and Castile families.

MORE GUNS THAN PEOPLE The United States bristles with guns — nearly 400 million, or about 1.2 guns for every resident, according to the Switzerland-based Small Arms Survey. About 40% of Americans say they live in a household with a gun, according to surveys. The firearms industry has seen record sales this year, driven by first-time buyers unsettled by the coronavirus pandemic and mass protests against systemic racism and aggressive policing after the death in May of George Floyd, a Black man, under the knee of a Minneapolis cop.

The prevalence of guns in American society makes the jobs of police all the more difficult and dangerous. Researchers at Harvard University and elsewhere have shown that both killings of police and police shootings of civilians are more likely in states with higher rates of gun ownership. Law enforcement’s attitudes toward gun control are complicated. The Major Cities Chiefs Association, whose membership includes top cops in Houston, Chicago, Los Angeles and New York, advocates for stronger controls. Elsewhere, law enforcement publicly voices support for gun rights. The Fraternal Order of Police, which represents rank-and-file officers nationwide, supports both qualified immunity and the Second Amendment, said spokeswoman Jessica Cahill. She declined to provide details on the group’s position.

On qualified immunity, police are unequivocal. They say it allows them to do their jobs without having to stop and second-guess themselves in fast-moving, perilous situations in which their lives or the lives of others are at risk. Despite growing public demands that qualified immunity be curbed, Congress and the Supreme Court have so far failed to act. The protests after the death of George Floyd prompted Democrat-led efforts in Congress to end qualified immunity. Those initiatives fizzled out in the face of opposition from the administration of President Donald Trump and congressional Republicans, who said eliminating qualified immunity would prevent police from doing their jobs. The Supreme Court, meanwhile, avoided the issue this year, declining to take up multiple cases aimed at dialing back the doctrine.

FAMILIAR WITH FIREARMS Leesburg, a city of around 20,000 people, and surrounding Lake County are gun country. The central Florida landscape of pine scrub is dotted with lakes and retirement communities — and gun stores. On its website, the Lake County Sheriff’s Office displays a Florida Sheriffs Association proclamation in support of the Second Amendment.

Andrew Scott was familiar with guns. His father, John Scott, worked for 26 years as a corrections officer in Florida, Tennessee and Michigan, and he always kept a gun at home. Andrew “knew to respect it. He knew they were dangerous,” John Scott said. Andrew Scott and Miranda Mauck met in early 2010 while both were working at Hungry Howie’s pizzeria. Mauck was charmed by the 6-foot, 300-pound “teddy bear” who could always make her laugh. He liked to build computers from scratch and “was really good with the nerdy stuff,” she said. She moved into his one-bedroom apartment two months later.

The couple struggled to make ends meet. Mauck picked up extra cash from babysitting gigs after quitting her job at the pizzeria, but the couple still relied on food stamps. At the time of his death, Scott had $100 in his bank account, Mauck said in her deposition in her lawsuit. They also worried about security at the Blueberry Hills apartments. Homeless people often roamed among the low-rise buildings, Mauck said. About a month before Scott was killed, she said, “some random person” was knocking on apartment doors and stole the lightbulb from their front-door lamp.

When a good friend offered Scott a handgun, he took it. In Florida, among the least restrictive states for acquiring and keeping firearms, the private transfer of that gun was legal, and Scott needed no permit to keep it at home. Scott had four criminal charges on his record — three misdemeanors and one felony drug possession charge later reduced to a misdemeanor — but no convictions, so the Florida law prohibiting felons from owning guns did not apply. The night Scott opened the door on Sylvester and the three other Lake County deputies, he did so lawfully. At that instant, Mauck said, “pure chaos” erupted. Seconds later, she tried to run to Scott’s side as he lay bleeding on the sofa, she said, but one of the deputies held her back, hustled her outside and put her in a squad car, where she was kept for several hours. In her deposition, she said one of the cops at the scene seemed amused by her T-shirt, which bore the words: “It’s all fun and games until the cops show up.”

A Lake County Sheriff’s Office investigation of the incident “found that the shooting was consistent with agency policy and the agency’s use-of-force training,” said an office spokesman. A Florida Department of Law Enforcement investigation yielded no conclusive findings, and Assistant State Attorney Richard Ridgway stated in a Sept. 25, 2012, memorandum that “the shooting was legally justified under Florida law.” Sylvester is still a deputy with the Lake County Sheriff’s Office, which declined to make him available for an interview.

THE USUAL ROUTE Soon after Mauck and Scott’s parents filed their federal excessive force lawsuit against Sylvester and the sheriff’s office, Sylvester did what most cops do in his situation: He asked Judge Conway to throw out the case on the grounds that he was entitled to qualified immunity.

Conway now conducted the two-part analysis judges apply when cops request immunity: whether the force used was reasonable in the circumstances or clearly excessive and in violation of the plaintiff’s constitutional rights, and whether police should have known at the time that their actions violated “clearly established” legal precedent. This test, opponents of qualified immunity say, sets too high a bar for plaintiffs to hold cops accountable for killing or seriously injuring civilians. Supreme Court interventions in recent years in favor of police have only raised that bar higher — in particular, by requiring that the details of a case be nearly identical to any clearly established precedent.

Deputy Sylvester, in his deposition, said Scott was aiming directly at him, an acute threat that his lawyers said justified his decision to fire. Mauck testified — and maintains to this day — that Scott was holding the gun at his side, pointed downward. Judge Conway ruled that even if Scott were not pointing the gun at Sylvester, the officer’s actions were reasonable in the “tense, uncertain and rapidly evolving situation” and thus did not violate Scott’s rights. Even if the shooting had violated Scott’s constitutional rights, she continued, no precedent clearly established that it was unlawful for Sylvester to shoot when confronted by a homeowner holding a gun.

Mauck and Scott’s family appealed to the Atlanta-based 11th Circuit Court of Appeals, which on Oct. 21, 2015, issued a one-paragraph ruling upholding Conway’s decision. The plaintiffs sought a rehearing by the full appellate court. The court on March 16, 2017, rejected that request, but it split 7-4 in its decision.

Judge Frank Hull, writing for the majority, said that Sylvester and his fellow deputies did nothing wrong when they knocked without announcing themselves and that, besides, Scott could have chosen not to open the door. After Scott opened the door, Hull reasoned, Sylvester violated no clearly established law when he shot and killed the young man. Hull cited 11th Circuit precedents, including a 2009 ruling in which the court said: “We look at the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balance the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate.”

“TRAGIC POLICE SHOOTINGS” In an impassioned dissent, Judge Beverly Martin said the court “gave a pass to dangerous unconstitutional police actions in a way that makes it more likely that tragic police shootings will continue to occur.”

The idea that Sylvester was justified in firing because Scott was holding a gun “clearly infringes” on the Second Amendment, Martin wrote, citing District of Columbia v. Heller. “If Mr. Scott was subject to being shot and killed, simply because … he made the ‘fateful decision’ to answer a late-night disturbance at the door to his house and did so while holding his firearm pointed safely at the ground, then the Second Amendment … had little effect,” Martin wrote. She concluded that Sylvester had clearly violated Scott’s Fourth Amendment rights by conducting a warrantless raid and using excessive force.

Martin noted that the 11th Circuit itself had ruled in a 2016 case that the fact that someone simply possesses a gun does not give police officers license to use deadly force. Other federal appeals courts have set similar precedents. The plaintiffs then petitioned the Supreme Court to hear their appeal to deny Sylvester immunity. By this time, gun rights activists were on the case. The Second Amendment Foundation filed a friend-of-the-court brief urging the Supreme Court to intervene, complaining that lower courts often fail to take into account gun rights when assessing police conduct.

“That the court below would shift the blame from Sylvester to his victim, for the latter’s deigning to access the Second Amendment, is but the latest episode in the courts’ struggle to describe the relationship between the right to keep and bear arms and the right to be free of unreasonable searches and seizures,” the brief said. In January 2018, the Supreme Court declined to hear the appeal. The case was over.

It was a crushing disappointment for Mauck. She had hoped a court victory would lead to local police reform, such as training to ensure officers announce themselves when knocking on doors. In the aftermath of the shooting, Mauck struggled with depression, and she is visited daily by memories of “goofy, playful” Scott. She worked for a while at a Planet Fitness gym, and recently started a baked-goods business out of her home called Sweets and Treats.

She remains a firm supporter of Second Amendment rights, owns a gun, and believes that a cop’s fear should not be allowed to override the Constitution. “Andrew was within his and my rights to come to that door with a firearm,” she said. “You don’t get to take that from us because someone was scared.” (Edited by John Blanton and Janet Roberts)

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