Lorraine Bailey | Courthouse News Service

Two police officers who fired 13 shots and killed a black man after one of their guns discharged are not entitled to immunity, the Sixth Circuit ruled.

Twenty-two year old Gregory Thompson was shot and killed by Lebanon, Tenn., police officers in 2010.

Police claim he was driving erratically, and Thompson’s car swerved across the center line of a two-lane highway, almost hitting Officer David McKinley’s police cruiser.

Thompson fled from McKinley when the officer tried to pull him over, and drove into a ditch after a six-minute chase joined by Officer Mitchell McDannald.

McKinley exited his patrol car, and claims he slipped in the dark, causing his weapon to discharge.

However, Thompson’s family claims that McKinley’s shot was intentional.

McKinley did not initially inform the sergeant on the scene that he slipped or that his shot was accidental, and there are conflicting assessments of whether the video evidence shows McKinley stumbling, court records show.

According to the police, the accidental discharge led McDannald to believe his fellow officer had been shot.

McDannald then fired 13 rounds into Thompson’s car.

It is unknown whether Thompson was conscious at the time. The police reported that he remained seated behind the wheel of the car.

In a civil rights lawsuit brought by Thompson’s family, a federal judge denied the two officers qualified immunity, finding that it remained unclear “whether there continued to be a perceived risk from Thompson even after McDannald fired the first, second, third, or fourth through 12th shots at him.”

The Sixth Circuit affirmed the denial of immunity Tuesday.

“The officers concede that ‘Thompson made no efforts to flee the vehicle, and that[] the total time during which McKinley exited his vehicle, ran towards the crash site, descended the embankment, gave Thompson two commands, and wielded and discharged his weapon was less than 15 seconds,'” Judge Alice M. Batchelder said, writing for the panel’s 2-1 majority. “And as we have already noted, the plaintiff presented evidence that Officer McKinley fired his weapon intentionally.”

Regarding McDannald, a reasonable jury could find that “a reasonable officer would have been on notice that firing 13 rounds into Thompson’s vehicle and person violated his Fourth Amendment rights ‘when Thompson had been seen to do nothing more than flee from police during the vehicular pursuit for potential driving under the influence,'” the 13-page opinion states.

U.S. District Judge Denise Hood, sitting by designation, joined Batchelder in the majority.

Judge Jane Stranch dissented, saying she would have declined jurisdiction over the appeal because it involved factual disputes.

Published by Courthouse News Service.

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