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Pre-seizure conduct in use of force cases

This is a complicated area of law that deserves greater treatment in training curricula


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Objective reasonableness. Those are the two words every law enforcement officer in the United States has repeatedly heard, beginning with academy training and continuing through entire police careers. If your actions were objectively reasonable under the circumstances, your use of force will be justified.

The often-quoted excerpt from Graham v. Connor supporting this generality is that the calculus of reasonableness must allow “for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

Judging the reasonableness of an officer’s actions, the Supreme Court noted, must be “from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight.” These have been staples of reasonableness analysis in law enforcement training curricula.

An informal logic added to use of force encounters is the time-worn trope circling policing since use of the “wheel gun” – better to be judged by twelve than carried by six – that oversimplifies deadly force justifications. It is a phrase well past its retirement date. A new mindset needs to take its place – with officer survival still preeminent – recognizing the legal reality that officer “pre-seizure conduct” leading up to the necessity to use force may be equally scrutinized when determining reasonableness.

This begins with acknowledging that Graham v. Connor was a civil case centered around a Fourth Amendment §1983 claim and is only one legal standard assessing excessive force complaints. The other standards are state criminal law statutes and state tort standards. Graham established a guide for lower courts to determine the reasonableness of officer actions within the context of civil litigation, though it is also relevant to criminal litigation, involving Fourth Amendment seizures. It created a constitutional standard. State criminal statutes and tort law stand apart and may vary in significant ways.

Since the 1989 Graham decision, the case, along with the 1985 decision in Tennessee v. Garner, has guided law enforcement training on the use of force. But any training curriculum that stops there and ignores peripheral legal standards is leaving much unsaid and officers exposed.

In the aftermath of a use of force encounter an officer is confronted with three legal realities:

  1. An internal agency review resulting in either clearance or administrative charges (the latter options then being exoneration, discipline, or termination);
  2. A potential civil lawsuit wherein the officer is sued individually and the department is also named as a defendant (and then a determination by the agency whether it will defend the officer, and, later, if a finding of officer liability, whether it will indemnify the officer);
  3. A possible criminal prosecution, beginning with an indictment that will assuredly be followed by termination, and the specter of a prison sentence. While the latter scenario is less likely, a quick online search retrieves many stories where this was the outcome in officer-involved shootings.

The crux of Graham’s reasonableness equation is the list of “non-exhaustive factors” the Court established for lower courts to consider in determining reasonableness:

  1. The severity of the crime at issue;
  2. Whether the suspect poses an immediate threat to the officer or others;
  3. Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Prior to listing those factors, Chief Justice Rehnquist, citing Bell v. Wolfish (1979), wrote “‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ however, its proper application requires careful attention to the facts and circumstances of each particular case.”

The relevant inquiry at this point is, what constitutes a “totality of circumstances” analysis? Are the officer’s actions to be judged based on the few seconds prior to the moment the trigger is pulled or does the inquiry re-wind back further to events leading up to the necessity for the officer’s use of force? The latter focuses on officer “pre-seizure conduct” and contemplates whether there is an element of “officer-created jeopardy” involved.

Since 2019 there have been at least six academic law review articles published that argued for a reassessment of the Graham reasonableness inquiry to include officer pre-seizure conduct under a “totality of circumstances” analysis. But the argument is not new, articles dating back almost 20 years have expressed similar views.

The U.S. Supreme Court has not yet spoken on this issue. Two cases involving facts focusing on “pre-seizure conduct” were decided by the Court without significant comment pertaining to “officer-created jeopardy.” In City and County of San Francisco v. Sheehan, 575 U.S. 600 (2015), the Court said whether the officers’ second entry into the petitioner’s room was a contributing factor in the use of deadly physical force was a factual question for the jury and not for them to determine the reasonableness of as a matter of law. Subsequently, in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), questions regarding the officers’ prior conduct leading to the use of deadly physical force were left unresolved.

While the Supreme Court remains silent, several federal circuit courts, under a Graham analysis, have taken broader views of the “totality of circumstances” leading up to the use of deadly force. These federal circuit courts of appeal view officer actions precipitating the use of force as relevant in a reasonableness inquiry. What does this mean in legal terms? It provides a broader range of officer behavior for plaintiffs to attack in civil liability cases and gives prosecutors a clearer path to proving criminally negligent, if not reckless, conduct by the officer in deadly use of force scenarios.

Since the 2014 shooting of Michael Brown in Ferguson, Missouri there has been a two-fold increase in federally reported cases involving officer pre-seizure conduct. After the murder of George Floyd in Minneapolis, police reform laser-focused on use of force decision-making. The federal circuit court split on reasonableness analysis may one day be reconciled by the Supreme Court. In the meantime, officers working within areas of the country where “pre-seizure conduct” is a variable in reasonableness analysis, knowledge of court holdings is useful.

For instance, the Sixth Circuit in Kirby v. Duva (2008) held “where a police officer unreasonably places himself in harm’s way, his use of deadly force may be deemed excessive,” while the Ninth Circuit in Vos v. City of Newport Beach (2018) wrote that Fourth Amendment violations should not be based solely on bad tactics but events leading up to the shooting, including the officer’s tactics, are part of the facts and circumstances for reasonableness analysis. The Third Circuit, in Abraham v. Raso (1999) addressed the core of Graham by stating it was impossible to reconcile the Supreme Court rule: requiring examination of the ‘totality of the circumstances’ with a rigid rule that excludes all context and causes prior to the moment the seizure is finally accomplished. ‘Totality’ is an encompassing word. It implies that reasonableness should be sensitive to all the factors bearing on the officer’s use of force.

Assessments of this type, according to Graham, require a “careful balancing of the nature and quality of the intrusion on the individual’s…interest against the countervailing government interests at stake.” Police conduct not advancing a government interest will likely fail to justify subsequent use of force.

This is a complicated area of law that deserves greater treatment in training curricula. Some agency use of force guidelines I have reviewed mention “pre-seizure conduct” or “officer-created jeopardy” but give quick work to it without any substantive support. The subject matter is too important for it to be ignored. If an officer is to be “judged by twelve,” let us make sure the officer can defend their actions.

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Terrence P. Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator. He is a tenured professor of legal studies at Western Connecticut State University and an attorney consulting on law enforcement liability, disciplinary cases, critical incidents, and employment matters. He is the author of “Homeland Security Law: Issues and Analysis,” Cognella Publishing (2024).