New knife-attack decision: Court ponders how far is close enough to be an “immediate” threat
The Ninth Circuit's recent split decision carries important implications for police training, policy and street practice
By Charles Remsberg, Editor-in-Chief, Calibre Press
Is it reasonable for officers to shoot an on-rushing knife-wielder at an estimated distance of 55 feet, or does the so-called “21-foot rule” suggest a would-be attacker that far away does not yet pose an immediate threat justifying deadly force?
That question is the core issue in a case of alleged excessive force brought before the US Court of Appeals in the nation’s largest judicial circuit.
The court’s recent split decision carries important implications for police training, policy and street practice.
Undisputed in this matter is that the assailant, a 23-year-old former high school football standout, wanted to die. But, in the words of his roommate, “He just couldn’t do it himself.” So, one winter evening in 2015, in a mood of “suicidal despair,” he called the police to “handle it.”
In what was later revealed to be a “swatting” call, he anonymously told a 911 operator in a Northern California city that “a crazy guy with a knife” was “threatening to kill my family” in a residence in a known gang area. The caller claimed he was desperately hiding with his children behind a locked door. “Please come fast!” he pleaded, before abruptly hanging up.
Anticipating a possible home invasion, two gang suppression officers patrolling nearby responded within two minutes. Upon their arrival, a young man standing outside the residence (later determined to be the fake complainant) began walking in their direction, brandishing a folding knife in his outstretched right hand.
The officers ordered him to stop and to drop the knife. Instead, according to a district attorney’s investigative report, he “began to run full stride” toward them.
Both officers opened fire. The attacker, struck 10 times, fell to the ground fatally wounded.
The DA declared the shooting justified. Likewise, a district judge, weighing a federal civil rights action alleging excessive force brought by the dead man’s survivors, ruled that the officers’ actions had been reasonable under the circumstances. She granted summary judgment in favor of the defendant officers and their municipality and dismissed the lawsuit.
After the plaintiffs appealed, a three-judge panel of the 9th Circuit Court of Appeals delivered a divided opinion. Two of these jurists concurred with the district judge and sustained her dismissal of the case. The third, however, dissented – and made the “21-foot rule” a central discussion point in the court’s recent decision.
Definition of the 21-foot rule
Quick refresher: What’s commonly called the 21-foot rule has been “widely explored, discussed, elucidated – and often misunderstood – for decades,” according to the prominent police attorney and use-of-force expert Michael Brave.
In reality, it’s not an absolute rule at all, but a rough guideline based on a firearms training exercise conducted over 36 years ago by well-known trainer Dennis Tueller. Tueller found that “the average healthy adult male,” running with a knife or other contact weapon in hand, can cover a distance of seven yards in about 1.5 seconds – the time it takes the “average” officer to draw a sidearm and place two hits center-mass on a man-size target 21 feet away.
Thus, the exercise suggested, within a 21-foot radius an officer might not have time to draw and successfully defend himself against a charging subject with lethal intent and deadly means before the attacker is on him.
Tueller cautioned awareness of this “Danger Zone,” but he did not characterize his finding as a “rule,” nor as some extreme misinterpretations have claimed did he assert that any knife-wielder within 21 feet can justifiably be shot, all subtleties aside.
In the case at hand, the appellate justices, without providing this background, merely state that: “The 21-foot rule provides that a person at a distance of 21 feet or less from an officer may pose a threat to the officer’s safety.”
A Question of Distance
Along the investigative and judicial trail of this case, various estimates had been given regarding the distance between the subject and the officers when they fired on him. The panel majority settled on these figures, offered by the plaintiffs:
The subject was “more than 130 feet” away when the officers first encountered him. “At the time [they] opened fire, [he] was approximately 55 feet from them.” (The defendants had estimated the distance somewhat shorter, at 46 feet.) “When [the subject] fell, he was approximately 18 feet” from the officers.
The dissenting appellate judge challenged his colleagues’ conclusion that the attacker posed an “immediate” threat warranting deadly force at a distance of 55 feet. By its written policy at that time, he pointed out, the officers’ department “provides that a person armed with a dangerous weapon, such as a knife or bat, constitutes a danger to the safety of [an] officer when that person is at a distance of 21 feet or less from the officer.
“Thus, under the Department’s own 21-foot rule,” the subject “at a distance of 55 feet presumptively did not pose an immediate threat” when he was shot, the dissenter argued. “The point of the rule is surely to guide officers’ conduct as to whether and when a suspect poses a threat…. [O]fficers are trained based on the policy, and the reasonable inference is that this training should affect our assessment of what a reasonable officer would believe and how he should react.”
To find that the shooting was deserving of a summary judgment, the judge insisted, was an error.
Defending its position, the majority pointed out that there was “no evidence, direct or circumstantial,” that the subject was standing still at a distance of 55 feet. The “undisputed evidence” was that he was “advancing toward the officers at a fast pace (at least 12.3 feet per second), all while armed with a knife and ignoring the officers’ repeated commands to stop….
“Had the officers waited 1 to 1.5 seconds more before firing when they did, [he] would have reached them with the knife before falling to the ground.”
As to the 21-foot “rule,” the majority stated, it provides that a person at that distance or less “may pose a threat to the safety of an officer. It does not follow from this rule, or any other, that armed suspects never pose [an immediate] threat beyond 21 feet. Notably, the dissent does not cite any case holding that an officer must wait until an armed suspect is within 21 feet, or capable of actually inflicting death or serious harm, before being justified in using deadly force….
“The officers’ use of force in response to [the subject’s] conduct was reasonable under the circumstances,” permitting the district judge’s dismissal of the case to stand.
You can access the court’s decision in full, free of charge by clicking here.
“The key take-away from this decision for policy and training,” says Atty. Brave, “is to avoid stating and practicing hard-line, so-called ‘rules’ that are not specifically mandated by controlling legal precedent or clearly and reliably established by sufficient scientific proof. To do otherwise only invites unnecessary trouble.
“Rely instead on the ‘objective reasonableness standard’ that requires weighing the totality of circumstances as reasonably perceived by the involved officer. This standard fosters consideration of all factors that could be included in reasonably determining whether a subject is an immediate threat of significant bodily harm, whatever the distance involved.”
Brave notes that the department involved in the case above has apparently changed its policy statement that the court said was in place when the fatal shooting occurred. “In checking the department’s current online-published policy manual,” he says, “the ‘21-foot rule’ is not mentioned.”
For more on this and other critical officer safety issues, attend a Calibre Press Street Survival Seminar near you.