Aleia Tousis v. Keith Billiot

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-2211

ALEIA TOUSIS, As Special Administrator

of the Estate of Gus Tousis, deceased,

Plaintiff-Appellee,

v.

KEITH BILLIOT, Special Agent, Drug

Enforcement Administration,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:20-cv-03012 — Sharon Johnson Coleman, Judge.

____________________

ARGUED JANUARY 5, 2023 — DECIDED OCTOBER 18, 2023

____________________

Before FLAUM, ROVNER, and BRENNAN, Circuit Judges.

ROVNER, Circuit Judge. Aleia Tousis, as special administra-

tor of the estate of her father, Gus Tousis, sued a law enforce-

ment officer who shot and killed Gus Tousis following a high-

speed chase. The officer moved for summary judgment on

qualified immunity grounds, and the district court denied the

motion. We reverse.

2 No. 22-2211

I.

Because this appeal arises from the denial of the officer’s

motion for summary judgment, we view the facts in the light

most favorable to the nonmoving party, the daughter of the

driver involved in this incident. Plumhoff v. Rickard, 572 U.S.

765, 768 (2014). We may not make credibility determinations

or weigh the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.

2003). We will refer to Gus Tousis as “Tousis" and to his

daughter as Aleia.

The Drug Enforcement Administration (“DEA”) began in-

vestigating Tousis in late 2017. Based on that investigation,

the DEA obtained a warrant to place a tracking device on Tou-

sis’s car. In addition to providing investigators with the loca-

tion of Tousis’s car, the device tracked the speed at which the

vehicle was traveling. On June 2, 2018, the investigating

agents believed that Tousis was involved in drug trafficking,

that he had a source named Vernon Turner in the Aurora, Il-

linois area, and that he would be going to Turner’s home that

day to procure drugs. They decided to surveil Turner’s home,

observe whether Tousis procured illegal drugs, and then ar-

rest Tousis and seize any drugs that he obtained from Turner.

On the day in question, DEA Task Force Officer Robert

Boehnke surveilled Turner’s home and observed Tousis arriv-

ing in a gray or silver SUV. Boehnke saw Tousis enter

Turner’s garage carrying a bag, and then exit the garage car-

rying the same bag. Boehnke noted a change in the appear-

ance of the bag and believed that a drug transaction had taken

place. He informed his fellow officers about what he saw. Spe-

cial Agent Keith Billiot, the defendant here, was a supervisory

special agent involved in the investigation that day. He

No. 22-2211 3

understood that Tousis was suspected of dealing cocaine and

heroin, and that he had a record of drug-related arrests as well

as arrests for other offenses. Agent Billiot followed the reports

from Officer Boehnke and other DEA agents that day.

DEA agents enlisted the aid of the DuPage County Sher-

iff’s Department to conduct a traffic stop of Tousis’s SUV after

it left Turner’s home. When a sheriff’s deputy attempted the

stop near I-88 and Yackley Avenue, Tousis fled at high

speeds, with the tracking device showing that the car acceler-

ated from 64.6 miles per hour to 115.2 miles per hour on I-88

during the chase. Because of the danger to the officers and the

public posed by Tousis’s reckless flight, the officers ended

their pursuit. Tousis was last observed by those officers weav-

ing in and out of traffic at dangerous speeds. The tracking de-

vice continued to show Tousis’s location and speed, and the

officers, including Agent Billiot, followed his progress. After

the officers ended the visible pursuit on I-88, Tousis reduced

his speed at certain points. The officers hoped to follow Tousis

to his home or to some place where it would be safe to appre-

hend him. Billiot learned from his fellow officers that Tousis

was heading eastbound on Interstate 290 at a high rate of

speed. Agent Billiot was driving an unmarked car that was

equipped with a siren and emergency lights. He proceeded to

Interstate 290 and spotted Tousis but did not activate his

lights or siren. Billiot followed Tousis off the highway at Cen-

tral Avenue in Chicago, where Tousis proceeded south-

bound. At this point, Tousis was driving at normal speeds,

but he was taking evasive actions that indicated to Billiot that

Tousis suspected he was being followed.

Billiot continued to follow Tousis until they were both

headed northbound on Central Avenue. At that point in the

4 No. 22-2211

road, Central Avenue has two lanes in each direction with a

median separating them. Tousis was in the left-hand lane and

Billiot in the right-hand lane when Billiot observed that Tou-

sis was approaching a red light and would be stopped behind

two cars at the light. Billiot decided that this was a good place

to make a second attempt at a traffic stop because Tousis

would be blocked in by traffic and would be unable to flee.

Billiot activated his emergency lights and siren and pulled in

front of Tousis’s car at a northwest angle. The position of Bil-

liot’s car in relation to Tousis’s car placed the driver’s door of

Billiot’s car directly in front of Tousis’s car at a distance of ap-

proximately ten to twenty-five feet. Officer Boehnke was ap-

proaching from behind and was over a hundred yards away

from the scene of the confrontation at the moment that Billiot

pulled in front of Tousis. After stopping his car, Billiot

grabbed his carbine rifle, exited his car wearing a well-

marked DEA law enforcement vest and ran towards Tousis’s

stationary car, shouting commands at him to turn off the car

and exit the vehicle. Closing the distance between the cars as

he ran, Billiot raised his rifle and pointed it at Tousis, but Tou-

sis ignored Billiot’s orders. Instead, Tousis moved the car for-

ward, maneuvering to the right where the lane was now open.

There was nothing between Agent Billiot and Tousis’s car. As

soon as Tousis’s car pulled forward, Billiot fired a single shot

at Tousis with his rifle. Backpedaling from the moving car,

Billiot fell onto the median, injuring his back. The bullet struck

the steering wheel “off-center to the left from the top of the

steering wheel,” and a fragment hit Tousis in the neck. R. 62-2,

at 21, ¶ 56. When comparing the location of the bullet hole in

the windshield with the location of the bullet strike on the

steering wheel, the positioning indicates that, at the moment

that Billiot fired his weapon, “Tousis was turning his wheel

No. 22-2211 5

to the right, maneuvering his vehicle away from Billiot, and

Billiot was angled to the driver[’s] side of the front end of Tou-

sis’s vehicle.” Id.

After the shot was fired, Tousis’s car accelerated, veering

to the right. The car struck a light pole, jumped a curb, and

came to a stop. The car was moving fast enough that, when it

hit the light pole, the front right wheel was torn off and the

axle was broken. Officer Boehnke pulled up and saw that

Tousis was slumped down and bleeding from the neck. Both

Boehnke and Billiot tried to open the car, but the doors were

locked and their efforts to break the windows with a hand

strike, with a device called a “window break,” and with a ba-

ton were all unsuccessful. Eventually, Tousis was extracted

from the car with the aid of an Illinois Department of Trans-

portation worker who broke a window with a sledgehammer.

Tousis was taken to a hospital where he was pronounced

dead. Billiot was also taken to a hospital where he was treated

for injuries to his back and released the same day. The police

officers recovered approximately 300 grams of cocaine from

Tousis’s car.

Before we move on to the legal analysis, we note that there

were several factual disputes between the parties in the sum-

mary judgment briefing below but none are material. In par-

ticular, Aleia asserted that summary judgment was inappro-

priate because of disputes regarding the timing of the shoot-

ing, the distance between Billiot and Tousis at the moment the

shot was fired, whether Billiot was struck by Tousis’s car dur-

ing the incident, and the positioning of Billiot relative to Tou-

sis’s car. But certain concessions made in the district court by

both parties clarify that the disputes to which Aleia refers are

not material to the relevant legal question.

6 No. 22-2211

As will become clear below, the most important fact for

the legal analysis of the claim of qualified immunity is

whether Tousis’s car was in forward motion in the vanish-

ingly small space between that car and Agent Billiot at the

moment Billiot fired the rifle. Aleia asserts that Tousis was not

driving directly toward Billiot at the moment the shot was

fired but was “maneuvering” to the right in an attempt to flee.

Billiot accepts that Tousis’s tires were turned to the right as

the car began to move forward. Although Aleia attempts to

manufacture a fact dispute regarding whether the car moved

forward at all before Billiot fired the shot, all of the evidence

in the record, including concessions by Aleia in summary

judgment proceedings in the district court, demonstrates that

the vehicle was in forward motion, albeit with the wheels

turned to the right, before Billiot fired the shot. In particular,

Aleia conceded below that “as soon as Tousis’s vehicle pulled

forward, Billiot fired his weapon.” R. 62-2, at 19, ¶ 53. Both

Agent Billiot and Officer Boehnke testified that Billiot fired

the shot after Tousis’s vehicle began to move forward. R. 59,

Ex. A, at 123 (Billiot Dep. at 106); R. 59, Ex. B, at 149 (Boehnke

Dep. at 42–44). Moreover, a disinterested bystander who was

standing at a nearby exit ramp also reported to the police that

he saw an officer position himself in front of a car, that the

vehicle began to move in the direction of the officer, that he

heard a gunshot and saw the officer fall to the ground. R. 59,

Ex. O, at 234 (Supplementary Police Report, at 3). Even with-

out this additional evidence, Aleia’s concession alone estab-

lishes that the vehicle was in motion prior to the shot being

fired.

Aleia nevertheless cites a Supplemental Police Report

(“Report”) that summarized an interview of Officer Boehnke

as evidence that Tousis did not drive forward until after

No. 22-2211 7

Billiot fired the shot, suggesting that his forward motion at

that point was not the result of any intentional action on Tou-

sis’s part. The summary of Boehnke’s interview in the Report

states that he was approaching the area where Tousis’s car

had been spotted and saw that it was stopped at a northbound

traffic signal. In that summary, Boehnke described hearing

the gunshot and then seeing Billiot fall to the ground. He then

saw Tousis’s car accelerate to the right and hit the light pole

before coming to rest. R. 59, Ex. F, at 187. Aleia reads this in-

terview summary as an admission that the car was not in mo-

tion before the shot was fired. But the Report’s silence on

whether the car was in motion before the shot was fired is not

evidence that the car was stopped. It would be pure specula-

tion to fill in the gap in the Report with such an assumption.

Gupta v. Melloh, 19 F.4th 990, 997 (7th Cir. 2021) (a court need

not give credence to facts based on speculation or conjecture);

Eaton v. J.H. Findorff & Sons, Inc., 1 F.4th 508, 513 (7th Cir. 2021)

(speculation is not enough to create a genuine issue of fact for

the purposes of summary judgment). At his deposition,

Boehnke was asked specifically about the movement of Tou-

sis’s car before the shot was fired. Boehnke explained that he

was driving down a hill toward the scene and saw Tousis pull

forward, then heard the gunshot, and then saw Billiot fall to

the ground. He then saw Tousis’s car shoot off to the right

where it hit a light pole, jumped a curb and came to rest. None

of this testimony was inconsistent with the Report; it simply

supplemented the Report on an issue not raised in the Report.

The undisputed evidence demonstrates that Billiot fired the

shot after Tousis’s car began to move forward.

Aleia also argues that the distance between Billiot and

Tousis’s car at the moment of the shot is in dispute. But Aleia

also conceded below that Billiot stopped his car between ten

8 No. 22-2211

and twenty-five feet in front of Tousis’s car, and then ran to-

ward Tousis’s vehicle as fast as he could, shortening the dis-

tance between them. R. 62-2, at 20, ¶ 53. By any account, that

would mean that Billiot stood much less than twenty-five feet

from the front of Tousis’s car, or fewer than two car lengths.

As for the positioning of Billiot in front of Tousis’s car, Billiot

has accepted for summary judgment purposes that the angle

at the time of the shot indicated that the wheels of the car were

turning rightward at the moment of the shot, toward the lane

of traffic that was then open. Aleia also denies Billiot’s claim

that the car backed up before it pulled forward and urges us

to reject Billiot’s claim that he was hit by Tousis’s car as he

backed away. But Billiot accepts for summary judgment pur-

poses that Tousis did not back up before moving forward, and

that Billiot was not struck by Tousis’s car. Because Billiot ac-

cepts Aleia’s version of the facts for summary judgment pur-

poses, none of these disputes are material to the legal analysis

in this claim for qualified immunity.

To summarize, for the purposes of the qualified immunity

analysis, the material undisputed facts demonstrate that

Agent Billiot pulled in front of Tousis shortly after Tousis en-

gaged in a reckless, high-speed flight from police officers after

leaving a suspected drug house; that Billiot exited his car and

ran toward Tousis, placing himself fewer than two car lengths

from the front of Tousis’s car, shouting commands to turn off

and exit the vehicle; that Tousis, turning his wheels to the

right, began to move forward; and that Billiot then fired the

fatal shot, fearing both for his own safety and for that of the

public if Tousis resumed his reckless flight.

That brings us to the basis for the appeal: Aleia Tousis

sued Billiot under 42 U.S.C. § 1983, alleging that Billiot

No. 22-2211 9

violated her father’s rights under the Fourth Amendment

when Billiot used excessive force to effect a seizure of her fa-

ther. Billiot moved for summary judgment on the grounds of

qualified immunity. The district court denied the motion, and

Billiot appeals.

II.

On appeal, Billiot contends that he is entitled to qualified

immunity as a matter of law. Specifically, he asserts that he

did not violate Tousis’s Fourth Amendment rights when he

fired the shot, and that it was not clearly established at the

time of the incident that the use of deadly force in these cir-

cumstances violated the Fourth Amendment. Although an or-

der denying summary judgment is generally not a final deci-

sion within the meaning of 28 U.S.C. § 1291, and is thus not

usually immediately appealable, the general rule does not ap-

ply when the summary judgment motion is based on quali-

fied immunity. Plumhoff, 572 U.S. at 771. Because qualified im-

munity is immunity from suit rather than a defense to liabil-

ity, pretrial orders denying qualified immunity generally fall

within the collateral order doctrine. Plumhoff, 572 U.S. at 771–

72. The questions presented here, namely, whether Billiot vi-

olated the Fourth Amendment and whether his conduct vio-

lated clearly established law, are purely legal and so appellate

review is appropriate. Plumhoff, 572 U.S. at 773. We review the

district court’s denial of summary judgment de novo, examin-

ing the record in the light most favorable to the nonmovant

and construing all reasonable inferences from the evidence in

her favor. Anderson, 477 U.S. at 255; Tolliver v. City of Chicago,

820 F.3d 237, 241 (7th Cir. 2016). Summary judgment is appro-

priate when there are no genuine disputes of material fact and

10 No. 22-2211

the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a); Tolliver, 820 F.3d at 241.

There are two inquiries in determining whether qualified

immunity applies: whether the facts, taken in the light most

favorable to the party asserting the injury show that the of-

ficer’s conduct violated a constitutional right; and whether

the right at issue was “clearly established” at the time of the

officer’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223,

232 (2009); see also District of Columbia v. Wesby, 583 U.S. 48,

62–63 (2018) (officers are entitled to qualified immunity under

section 1983 unless (1) they violated a federal statutory or con-

stitutional right, and (2) the unlawfulness of their conduct

was clearly established at the time). Although the Supreme

Court considers it beneficial to consider the first prong of the

test before engaging with the second, courts may “exercise

their sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Pear-

son, 555 U.S. at 236. Aleia claims that Billiot employed exces-

sive force in effecting a seizure of Tousis, a claim that is ana-

lyzed under the Fourth Amendment’s objective reasonable-

ness standard. Graham v. Connor, 490 U.S. 386, 388 (1989).

We exercise our discretion to focus on the second prong of

the qualified immunity test in deciding this issue: whether

Billiot’s use of deadly force in this situation violated clearly

established law. “‘Clearly established” means that, at the time

of the officer’s conduct, the law was sufficiently clear that

every reasonable official would understand that what he is

doing is unlawful. Gupta, 19 F.4th at 1000 (citing Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). The Supreme Court has held

that “[w]here the officer has probable cause to believe that the

No. 22-2211 11

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.” Tennessee v. Garner,

471 U.S. 1, 11 (1985); see also Tolliver, 820 F.3d at 245 (same).

The fact-specific nature of whether an officer used excessive

force depends on the totality of the circumstances surround-

ing the encounter. Tolliver, 820 F.3d at 245; Scott v. Edinburg,

346 F.3d 752, 756 (7th Cir. 2003).

If a suspect threatens the officer with a weapon,

that risk of serious physical harm has been es-

tablished. … In assessing whether force was ex-

cessive, we must analyze the actions of the of-

ficer from the objective perspective of a reason-

able officer on the scene, rather than with the

20/20 vision of hindsight. … Moreover, the rea-

sonableness calculus must allow for the fact that

officers are often forced to make split-second

decisions about what amount of force is neces-

sary in circumstances that are tense, uncertain

and rapidly evolving.

Tolliver, 820 F.3d at 245 (citations omitted).

An automobile may be used as a deadly weapon. Tolliver,

820 F.3d at 245; Scott, 347 F.3d at 757. As is the case here, in

Tolliver, the plaintiff was a driver who was involved in an al-

tercation with police officers attempting to make an arrest. In

remarkably similar circumstances, the officers who fired the

shots that injured Tolliver were fewer than two car lengths

away and on foot when Tolliver’s car began to move forward

in the general direction of the officers. As is the case here, one

of the officers was injured when he fell as he tried to evade

the moving car. Tolliver asserted that he was moving forward

12 No. 22-2211

at only three miles per hour, too slowly to injure the officers,

but we noted that the officers had only seconds to react and

could not know whether Tolliver would accelerate and close

the distance more quickly, shortening the space and time in

which to react. They knew only that they had stopped a car

being driven by a man purportedly transporting cocaine, and

that the man had responded by first backing up and then by

moving towards them as they stood in front of the car. We

concluded that qualified immunity applied to the officers’ ac-

tions because “[r]easonable officers in their circumstances

would have perceived the car as a deadly weapon that created

a threat of serious physical harm.” Tolliver, 820 F.3d at 246.

As in Tolliver, Billiot was immediately in front of Tousis’s

car, much less than two car lengths away, when the vehicle

began to move forward. That the wheels were turned to the

right does not change the calculus. First, in a very small space,

even a car maneuvering to the right poses a serious danger to

a person standing in front of it. Cars making turns do not pro-

ceed horizontally; they follow an arc, and the undisputed ev-

idence establishes that Billiot was standing very close to the

front end of Tousis’s car when it began to move forward and

to the right. Indeed, Aleia repeatedly faults Billiot for placing

himself in the zone of danger. Response Brief at 11; R. 62, at

13, ¶ 44. Second, Billiot had no way of knowing whether Tou-

sis would change direction or accelerate. As in Tolliver, a rea-

sonable officer in these circumstances would be in fear of be-

ing hit by the moving vehicle.

Aleia Tousis is convinced that her father did not intend to

hit the officer but was simply trying to “evade Agent Billiot.”

Response Brief at 20. Even if we assume that Aleia’s specula-

tion is correct, Billiot had no way of knowing Tousis’s

No. 22-2211 13

intentions and was forced to react in a matter of seconds to

Tousis’s actions based on what Billiot knew at the time. Billiot

knew that Tousis had already fled law enforcement once, only

minutes earlier, at reckless speeds, weaving in and out of traf-

fic, endangering the lives of officers in pursuit and members

of the public with whom he shared the road. Billiot was con-

cerned not only for his own safety but for that of the public

because of Tousis’s extremely reckless flight. In Plumhoff, the

Supreme Court addressed whether a suspect’s reckless flight

justified the use of deadly force after a pause in the chase and

an attempt to resume flight:

[T]he chase in this case exceeded 100 miles per

hour and lasted over five minutes. During that

chase, Rickard passed more than two dozen

other vehicles, several of which were forced to

alter course. Rickard’s outrageously reckless

driving posed a grave public safety risk. And

while it is true that Rickard’s car eventually col-

lided with a police car and came temporarily to

a near standstill, that did not end the chase. Less

than three seconds later, Rickard resumed ma-

neuvering his car. Just before the shots were

fired, when the front bumper of his car was

flush with that of one of the police cruisers,

Rickard was obviously pushing down on the ac-

celerator because the car’s wheels were spin-

ning, and then Rickard threw the car into re-

verse “in an attempt to escape.” Thus, the rec-

ord conclusively disproves respondent’s claim

that the chase in the present case was already

over when petitioners began shooting. Under

the circumstances at the moment when the

14 No. 22-2211

shots were fired, all that a reasonable police of-

ficer could have concluded was that Rickard

was intent on resuming his flight and that, if he

was allowed to do so, he would once again pose

a deadly threat for others on the road.

Plumhoff, 572 U.S. at 776–77. In those circumstances, the Court

concluded that the police acted reasonably in using deadly

force to end that risk. 572 U.S. at 777.

Once again, the circumstances are remarkably similar to

the situation presented here. Tousis had engaged in a lengthy,

reckless flight at speeds in excess of 114 miles per hour, weav-

ing in and out of traffic as he fled officers who were forced to

abandon the pursuit in the interest of public safety. By Aleia’s

own admission, at the time that Billiot fired the shot, Tousis

was maneuvering to the empty right lane in order to evade

the police once again. A reasonable officer could have con-

cluded both that Tousis was intent on resuming his flight and

that he would again pose a serious danger to public safety. In

light of Tolliver and Plumhoff, Billiot’s actions thus did not vi-

olate clearly established law; in fact, established law holds to

the contrary that the officer’s actions were objectively reason-

able in substantially similar situations.

Aleia’s arguments to the contrary do not withstand scru-

tiny. Because we have elected to decide the case on the second

prong of the qualified immunity analysis, we need not engage

the appellant’s arguments related to the first prong, whether

Billiot violated Tousis’s Fourth Amendment rights. We con-

sider instead only Aleia’s arguments related to whether Billiot

violated clearly established law by using deadly force in these

circumstances. On the issue of the use of deadly force when

there is a danger to the officer, Aleia relies on Estate of Starks

No. 22-2211 15

v. Enyart, 5 F.3d 230 (7th Cir. 1993). She contends that Starks

clearly established that deadly force could not be used against

a non-threatening individual when the officer created the en-

counter that ostensibly permitted the use of deadly force. As

for the use of deadly force when an individual poses a serious

risk to the public, Aleia argues that Plumhoff is distinguisha-

ble.

In Starks, the plaintiff stole a taxicab and drove it to a

nearby fast-food parking lot. Starks, 5 F.3d at 232. Three uni-

formed officers arrived in two marked police cars and parked

both cars behind the cab. The officers then surrounded the car

—one officer stood in front of the car but behind a utility pole,

one stood behind the car, and one stood next to the driver’s

door—and confronted Starks. Starks refused an order to exit

the cab, and tussled with an officer who opened the driver’s

door, pulling it closed again and locking the doors. After

Starks ignored a second order to exit the cab, he put the car in

reverse and slowly backed into the police car parked behind

him. He then drove forward and to the right but was blocked

by a utility pole. Starks then backed up to the left to improve

his position relative to the utility pole, put the car in drive,

and floored the accelerator. Starks would have cleared the

pole had he been allowed to continue but the officers fired on

the car and Starks died as a result of his wounds.

The parties disputed whether the officer in front of the car

emerged from behind the relative safety of the utility pole be-

fore or after the car began to move, a question that we found

material to the qualified immunity analysis. Examining the

totality of the circumstances, we noted that Starks’ underlying

crime was not accomplished violently. Although Starks was

attempting to flee, he had not menaced an officer or civilian

16 No. 22-2211

with a weapon, at least not until an officer appeared in front

of the car. Starks had not initially maneuvered the cab in so

reckless a manner that a reasonable officer would fear for his

safety or that of the community. The plaintiff conceded that if

the officer had moved in front of the car before Starks began

to drive forward, then the officers would have been justified

in firing their weapons. The plaintiff also conceded that a rea-

sonable officer could have moved out from behind the pole

after the cab had begun moving forward if there was enough

time for Starks to stop the cab before striking him.

But the factual dispute regarding the sequence of events

made it impossible to decide the qualified immunity question

at the summary judgment stage:

The key dispute for the factfinder will be

whether [the officer] stepped in front of Starks’

rapidly moving cab, leaving Starks no time to

brake. If he did, then [the officer] would have

unreasonably created the encounter that osten-

sibly permitted the use of deadly force to pro-

tect him, because the decedent would have been

unable to react in order to avoid presenting a

deadly threat to [the officer]. On the other hand,

if [the officer] was in the path of the car before

the car started forward or if the factfinder con-

cludes that Starks could have braked but chose

not to, then the three defendants reasonably re-

sponded to Starks' acceleration toward [the of-

ficer]. Starks would have threatened the life of a

police officer, and reasonable officers could be-

lieve that the use of deadly force was appropri-

ate.

No. 22-2211 17

Starks, 5 F.3d at 234. Noting that there is no seizure more in-

trusive than one effected by deadly force, we concluded that,

“[i]f a fleeing felon is converted to a ‘threatening’ fleeing felon

solely based on the actions of a police officer, the police

should not increase the degree of intrusiveness. In other

words, we have no countervailing governmental interest in

unreasonable police conduct that would justify a greater in-

trusion on the individual’s rights.” Starks, 5 F.3d at 234.

Aleia contends that Billiot created the danger by leaving

the relative safety of his police car to stand in front of Tousis’s

car, knowing that Tousis’s vehicle might strike him. Accord-

ing to Aleia, under Starks, Billiot unreasonably placed himself

in danger by running toward Tousis’s car and threatening

Tousis with deadly force. Aleia concedes that, if an individual

is driving towards an officer, then the officer is justified in us-

ing deadly force and will be protected by qualified immunity.

Under Starks, she contends, an officer may not step into the

path of the vehicle and unreasonably create the threat that

then justifies the use of deadly force. But her contention is

missing an important word that distinguishes Starks from this

case: Starks hints only that an officer may not step into the

path of a moving vehicle and then justify the use of deadly

force by claiming to be threatened by the use of the car as a

deadly weapon. In this instance, Billiot exited his car to stand

before a stationary vehicle that was initially blocked in by traf-

fic. Billiot did not create the danger; Tousis did when he be-

gan to move forward toward the officer. Starks thus did not

place the constitutional question confronted by Agent Billiot

beyond debate. Plumhoff, 572 U.S. at 779. He was not on fair

notice that the use of deadly force was unreasonable in these

circumstances, and he was therefore entitled to qualified im-

munity. Id.

18 No. 22-2211

Aleia’s attempts to distinguish Plumhoff are equally una-

vailing. She argues that her father had not committed a vio-

lent crime, posed no danger to the public, was stopped in traf-

fic behind two vehicles and a red light, was not driving at high

speed, and was not involved in an active police chase at the

moment the shot was fired. Much of this argument ignores

the undisputed facts. Like Rickard, the fleeing driver in Plum-

hoff, Tousis had fled from the police only minutes earlier by

driving recklessly at speeds in excess of one hundred fourteen

miles per hour, weaving in and out of traffic. As in Plumhoff,

there was a pause in the pursuit and the driver was then

poised to resume flight. By attempting to resume flight, Tou-

sis posed a danger not only to the public but to the officer who

stood in front of Tousis’s car, or so a reasonable officer could

have concluded. Aleia contends that it cannot be conclusively

determined that her father intended to resume his flight, but

that is not the relevant question; the question is whether an

officer in this situation could reasonably conclude that the

driver was attempting to resume his reckless flight. Billiot had

cut off Tousis’s path forward, displayed his rifle and ordered

Tousis to turn off the car and exit. When Tousis ignored those

orders and began to pull forward and to the right where the

lane of traffic was open, a reasonable officer could conclude

that he was attempting to resume his reckless flight. Tousis

had already displayed an alarming disregard for human life

by fleeing at a perilous speed while weaving in and out of

traffic. Nothing in Plumhoff placed Billiot on notice that he

could not use deadly force in these circumstances.

In sum, in the circumstances presented here, Billiot had an

objectively reasonable belief that his own life and the lives of

the public were at risk when he fired the shot that killed Tou-

sis, and there was no case law warning Billiot that his actions

No. 22-2211 19

under those circumstances amounted to excessive force in vi-

olation of the Fourth Amendment. Billiot was therefore enti-

tled to summary judgment on his claim of qualified immun-

ity. We reverse and remand with instructions to enter judg-

ment in favor of Agent Billiot on the basis of qualified immun-

ity for the claim of excessive force.

REVERSED AND REMANDED.