often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. Id. at 396-97.
The use of deadly force is justified when the officer has "probable cause to believe that the suspect pose[s] a threat of serious physical harm, either to the officer or to others." Tennessee v. Garner, 471 U.S. 1, 11 (1985); see Nelson, 162 F.3d at 990; O'Bert ex. rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003) (same as Garner); Deluna v. City of Rockford, 447 F.3d 1008, 1010 (7th Cir. 2006), citing Scott v. Edinburg, 346 F.3d 752, 756 (7th Cir. 2003) (deadly force can be reasonably employed where an officer believes that the suspect's actions place him, or others in the immediate vicinity, in imminent danger of death or serious bodily injury). An officer may use deadly force under certain circumstances even if the suspect is fleeing. "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." See Garner, 471 U.S. at 11-12.
An officer may not, on the other hand, use physical force, deadly or otherwise, once a threat has been neutralized. This is true even if the suspect threatened an officer's life – or that of another – prior to being brought under control. See Moore v. Indehar, 514 F.3d 756, 762 (8th Cir. 2008); Nelson, 162 F.3d at 990. For that reason, every instance in which Wilson shot Brown could potentially be prosecuted if the deployment of deadly force was objectively unreasonable in the particular circumstance. We must therefore determine whether, each time he fired his weapon, the available evidence could prove that Wilson acted reasonably or unreasonably in light of the facts available to him at the time. In particular, we must examine whether the available evidence shows that Wilson reasonably believed that Brown posed a threat of serious bodily harm to Wilson himself or others in the community, or whether Brown clearly attempted to surrender, prior to any of the shots fired by Wilson.
The evidence establishes that the shots fired by Wilson while he was seated in his SUV were in self-defense and thus were not objectively unreasonable under the Fourth Amendment. According to Wilson, when he backed up his SUV and attempted to get out to speak with Brown, Brown blocked him from opening the door. Brown then reached through the window and began to punch Wilson in the face, after which he reached for and gained control of Wilson's firearm by putting his hand over Wilson's hand. As Brown was struggling for the gun and pointing it into Wilson's hip, Wilson gained control of the firearm and fired it just over his lap at Brown's hand. The physical evidence corroborates Wilson's account in that the bullet was recovered from the door panel just over Wilson's lap, the base of Brown's hand displayed injuries consistent with it being within inches of the muzzle of the gun, and Wilson had injuries to his jaw consistent with being struck. Witnesses 102, 103, and 104 all state that they saw Brown with the upper portion of his body and/or arms inside the SUV as he struggled with Wilson. These witnesses have given consistent statements, and their statements are also consistent with the physical evidence.
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