Technical use of force / excessive force / 42 USC 1983 case
by John Tate

((Prefatory comment. This case presents an interesting extension to several other police-shooting-at-car-in-self-defense cases. [1]))

It is the facts of Havens v. Johnson [2] that make it interesting, because the case itself deals with a somewhat minor, legal technicality.

The Facts.

Darrell Havens was the intended target of a sting operation; he was to deliver a stolen car to an informant in exchange for money and drugs. Additionally Havens had been identified as having “had outstanding warrants for robbery and weapon possession, had previously fled from law-enforcement officers, and had associates known to carry weapons.”

When Havens arrived with the stolen Audi at the appointed meeting place, police cars boxed him in.

Once the Audi was blocked between the Blazer and the blue pickup, it began ramming the Blazer in front of it and the blue pickup behind it.1 Sandy drove his white pickup into the passenger side of the Audi and pushed it sideways toward a snowbank against the east wall of the alcove. The Audi stopped moving and Johnson stepped out of the passenger side of the white pickup with a Taser in his hand, planning to arrest Havens. Sandy also exited the pickup and broke the front passenger window of the Audi with a wrench. The Audi then maneuvered to push the pickup backwards, pivoting on the right front bumper of the truck, and continuing to move down the truck’s passenger side. Johnson was in front of the Audi wearing a police badge and a jacket that said “Police” in reflective material. He drew his gun, ordering Havens to stop and put the car in park. Meanwhile, Beauvais had driven the Jeep Liberty behind Johnson. Johnson fired nine times, hitting Havens three times and rendering him a quadriplegic. [3]
The critical factual issue is what was going on when Johnson fired at Havens. Johnson’s post event testimony varied over time as to whether Havens’ car was touching him or approaching him and whether Johnson was some feet away from Haven’s car or was leaning over it. There was a hand print on the hood of the Audi indicating Johnson had, in fact, been leaning over the hood; but it is not clear when this print was placed there.

The statements of officers other than Johnson indicated that the Audi was moving toward Johnson when he fired the shots.

As for Defendant Johnson’s [final] version, he testified at his deposition that while the Audi accelerated down the side of Sandy’s pickup, he backpedaled, Havens turned the steering wheel, and the Audi struck him. Thinking he was about to be crushed by the Audi, he fired his gun nine times into the windshield to stop Havens. After he fired the shots the Audi was temporarily pinned by the Intrepid; but its engine was revving and it started coming at him again. He pulled out a new magazine, dropped it, picked it up, reloaded, and got back into position to fire again if needed. No more shots were fired. [4]
The State of Colorado charged Havens with multiple offenses; he pleaded guilty to attempted first-degree assault of Johnson (among other things).

In the case at bar, Havens brought an excessive-force claim under 42 U.S.C. § 1983 against Johnson in which Havens denied any wrongdoing. Instead, he asserted that he at no time attempted to resist arrest, claiming that the officers, by crashing their cars into the Audi, caused Havens “to lose control of the vehicle which resulted in the vehicle lurching forward under its own volition.”

The Law.

Two areas of law are here significant: Johnson’s justification for use of deadly force, and the effect of Havens’ guilty plea on his subsequent recantation and civil rights suit.

Regarding the former:

The “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The use of deadly force is justified “if a reasonable officer in [the defendant’s] position would have had probable cause to believe that there was a threat of serious physical harm to [himself] or to others.” “Thus, if threatened by [a] weapon (which may include a vehicle attempting to run over an officer), an officer may use deadly force.” [5]
Resolution of whether Johnson’s use of force was justified never reached because of a legal technicality from Heck v. Humphrey. [6]

The Heck rule is beyond the scope of this review. It’s details are available at the link to the reviewed case at note 2. In essence, Havens’ Alford plea served as a guilty plea for Heck purposes and thereby foreclosed his ability to later claim Johnson’s use of force against him was unjustified as excessive.


[1] Read and contrast State v. Morales, 2002-NMCA-052; Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); State v. Mantelli, 2002-NMCA-033; Fancher v. Barrientos, 10th Circ. #12-2114 (2013); and Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir. 1999).

[2] 10th Circ #14,1118, 15 Apr 2015)

Click to access 14-1118.pdf

[3] Ibid. at page 4

[4] Ibid. at page 6

[5] Ibid at page 10. Internal citations omitted. Emphasis added.

[6] 512 U.S. 477 (1994)

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