Why are the Fairfax County police...considering the laws they break... not considered organized crime?
A federal appeals court in Virginia this week ruled that a
Fairfax County police officer who shot a suspected drug dealer through the back
window of his SUV may have violated the man’s constitutional rights, calling
into question the department’s tactics surrounding use of force during
undercover operations.
The decision by the U.S. Court of Appeals for the Fourth
Circuit revolves around a 2022 incident in Fairfax’s Seven Corners
neighborhood, where a police sergeant riding in an unmarked pickup truck fired
at Jeffery Payne during a chase, striking him in the arm before he was
arrested. Payne was charged with possession with intent to distribute cocaine,
for which he served a two-year prison sentence.
Payne sued the sergeant, Joshua Moser, in March 2024,
claiming that the use of force was excessive and that he wasn’t aware that he
was being pursued by law enforcement officers after leaving a parking lot
before a drug transaction set up by police through a confidential informant was
allegedly meant to occur.
In November of that year, U.S. District Judge Michael S.
Nachmanoff, in Virginia’s Eastern District, agreed with Fairfax County’s motion
to dismiss the case, ruling that Moser used “an objectively reasonable amount
of force” when he shot Payne, 43, because, acting on information from the
confidential informant, he thought Payne was armed and reaching for a gun. But
the appeals court disagreed with Nachmanoff’s decision and remanded the case
back to his court.
In a joint opinion written by Judge Nicole G. Berner, the
three-judge panel said Nachmanoff did not account for other instances of
excessive force used by police against Payne, and must now decide whether the
shooting was justified and if Payne’s Fourth Amendment rights guarding against
unreasonable searches and seizures were violated.
The judges noted Nachmanoff must also determine whether
Moser should be shielded from liability through qualified immunity — which
protects law enforcement officers in cases involving use of force unless they
violate a person’s clearly established constitutional rights.
“We are mindful that police officers are sometimes forced to
make split second decisions that can mean the difference between life or death
for themselves and their fellow officers,” Berner wrote. “Such considerations
cannot, however, excuse the use of excessive force in violation of the Fourth
Amendment.”
The incident in question occurred on the night of Aug. 2,
2022. Undercover Fairfax police detectives set up a “controlled drug buy” from
Payne. The detectives, with the help of an informant who had been arrested
earlier in the day, planned to meet Payne in a Wendy’s parking lot, court
documents show.
The detectives, who pulled up in five unmarked cars, were
told repeatedly by the informant that Payne was known to carry a firearm,
according to Berner’s opinion. Upon his arrival, they agreed they would have
probable cause to arrest Payne, “regardless of whether the controlled buy
actually occurred.”
But Payne drove away as one of the undercover officers
approached his SUV, later saying in a court filing that something “didn’t feel
right.”
The detectives followed him to a stop sign. Moser, who was
wearing a police uniform and sitting in the passenger seat of a pickup truck,
directed the other detectives to arrest Payne, according to court documents.
The detective driving the truck pulled in front of Payne’s
SUV, which caused him to drive over a curb.
“Believing that someone was attempting to rob or kill him,
Payne tried to get away from the potential assailants,” Berner wrote.
Another detective rammed their vehicle into Payne’s from
behind, causing it to spin in circles. It was after this moment that Payne said
he noticed police lights and sirens for the first time, Berner wrote in the
joint opinion.
“He had previously been unaware that the vehicles pursuing
him belonged to law enforcement,” the judge wrote. Moser had contended that the
detectives activated their lights just after the pursuit started.
Less than a week before the incident, Payne had surgery on
his right arm and shoulder, his attorney, Andrew Omar Clarke, wrote in a
complaint filed in the Eastern District of Virginia. His right arm was in a
cast and a sling, so he said he used his left hand to regain control of the
vehicle while it was spinning.
The detectives boxed Payne in with their unmarked vehicles,
and Moser exited the pickup truck, according to the documents. He approached
Payne’s SUV from the rear and, according to a court filing, said Payne reached
toward the center console. Fearing he had a gun, Moser shot through the back
window, striking Payne in the left arm.
Police shouted at Payne for him to raise his hands and
“throw the gun out the window,” Berner wrote. Payne told the detectives he
couldn’t move and was not armed.
The detectives found cocaine inside Payne’s bag but did not
find any weapons in the vehicle.
Besides activating the police lights, Moser said he gave
Payne multiple verbal commands identifying himself as a police officer before
he fired his weapon. Payne said he didn’t hear anything. And while Payne
maintains that he kept his arm to his side, Moser says he saw Payne reach into
the center console as he shined a flashlight into Payne’s vehicle that night.
Nachmanoff granted a summary judgment in favor of Moser,
saying in his decision that the sergeant “reasonably interpreted Plaintiff’s
movements … as being consistent with reaching for a weapon.”
In their opinion, the appeals court judges noted that the
detectives’ maneuvers to block Payne’s SUV did not appear warranted because,
driving away slowly from the parking lot, he posed no significant danger to the
public.
Fairfax County police did not directly respond to questions
about the appellate court decision or use-of-force policies when conducting
undercover operations. A spokesperson shared links to the department’s general
orders that lay out department policy.
Use of force “must be objectively reasonable based upon the
totality” of the known circumstances by police, according to the general order.
Before an officer deploys deadly force — which is allowed only if it’s
“immediately necessary” to protect an officer or another person, and all other
options have been exhausted — they should provide a verbal warning. If a person
was accused of a felony and attempts to flee, Fairfax police officers should
deploy deadly force only when, among other things, the person “possessed or
appeared to possess a deadly weapon and refused to comply with the officer’s
lawful order to surrender an object believed to be a deadly weapon prior to the
officer deploying deadly force.”
The lawsuit seeks $5.1 million in damages, though Clarke
said a jury could settle on a different amount.
After the shooting, Payne’s left arm required surgery, which
has left it with minimal function, the attorney said.
Clarke said Payne “accepted responsibility” for the criminal
charge against him, but “that does not give the officers the opportunity for
nonviolent offenses to go out and shoot and try to injure citizens.”
“Mr. Payne almost lost his life on that day,” he said.
Clarke recalled another incident that happened months after
Payne was shot, in which a mother was driving on Richmond Highway with her two
kids when Fairfax County police officers mistook her for another person
connected to a crime and struck her vehicle with their own.
Clarke said the appellate court’s ruling shows that “these
officers can no longer conduct those maneuvers unless there is some kind of
danger to the public.”
The case will be heard again in Virginia’s Eastern District.
