Tenth Circuit: Officers can be constitutionally liable for creating the need to use lethal force
Some federal circuit courts appear ready and willing to rule against officers and their municipalities when deadly force is used quickly in matters involving mentally ill subjects
On 8/30/13 at 7:30 pm, the wife of Jaime Ceballos called 911 and reported that her husband was in their driveway with two baseball bats and “acting crazy.” She expressed fear and stated she was with her 17-month-old daughter. She stated that Ceballos was drunk, probably on drugs and that two of his friends were with him.
The Thornton (Colorado) police dispatcher informed responding officers that Ceballos was armed with one or more bats, drunk and “is known to have knives.” Dispatch also stated that he was a “walkaway” from a nearby medical center the previous night.
Dispatch sent written information to responders indicating that Ceballos threatened his wife with a knife several months earlier and was not taking his anti-depression medication. However, Officer Husk, the lead officer on the scene, did not read the written communication.
Husk and Officer Ward parked several houses away from the Ceballos driveway and spoke to the wife who was with her daughter, a safe distance away from the Ceballos home. Both officers began walking toward Ceballos. During their approach, they were met by Ceballos’ two male friends who told them that Ceballos was not acting right and might be on drugs. Meanwhile two other officers arrived. One of them parked behind Husk and Ward and the other (Officer Snook) parked in the opposite direction from the approaching officers. Snook recognized Ceballos from the “walkaway” incident of the previous night and thought that he “didn’t seem right.” He returned to his vehicle and grabbed his beanbag shotgun.
Husk and Ward reached a distance of about 100 yards from Ceballos. He was pacing in his driveway, swinging a bat, yelling and throwing his arms in the air. No one else was nearby or in apparent danger.
Both officers shouted repeated commands for Ceballos to drop the bat. He ignored them and walked inside his garage. Husk drew his firearm and Ward drew his TASER. Ceballos emerged from the garage still carrying the bat and walked toward Husk and Ward. He refused to honor their commands and responded with foul language. Husk told him to stop and drop the bat or he would be shot.  Officer Husk fired his pistol and Ward fired the TASER at Ceballos. Ceballos was killed. The District Court opinion indicates that Husk stated Ceballos was 15 to 20 feet away when he shot him.
The Ceballos Estate sued Husk in federal court pursuant to 42 U.S. C. § 1983 (federal civil rights statute) alleging excessive force against Husk in violation of the Fourth Amendment.  The Federal District Court Judge refused to dismiss the lawsuit against Husk and rejected his claim of qualified immunity. He filed an appeal with the Tenth Circuit Court of Appeals. The Tenth Circuit ruled against Officer Husk on his qualified immunity claim and agreed with the lower court that the excessive force allegation should be set for jury trial.
Excessive Force and Qualified Immunity
Husk argued on appeal that the law in the Tenth Circuit was not sufficiently explicit for him to have violated clearly established constitutional law for the actions that he took regarding the Ceballos incident.
The court disagreed and pointed to a prior case decided by the Tenth Circuit, Allen v. Muskogee, 119 F.3d 837, 839-841 (10th Cir. 1997). Allen had an altercation with his family, took several guns and ammunition with him, drove to his sister’s home and parked outside. The sister called police and said Allen was threatening suicide. Officers arrived and observed Allen sitting in his car with a gun in his hand. Officers repeatedly commanded Allen to drop the gun without effect. Officers approached his vehicle on both sides and attempted to disarm him from the driver’s side. The attempt failed and Allen pointed his gun at the officers. Two officers fired and Allen was killed.
The Tenth Circuit ruled in favor of Allen’s Estate and held that a jury could find that excessive force was used in that case. The court in Allen explained that the “reasonableness of [an officer’s] actions depends both on whether the officers were in danger at the precise moment that they used force and on whether [their] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” The court explained further that they will consider an “officers conduct prior to the suspect’s threat of force if the conduct is ‘immediately connected’ to the suspect’s threat of force.” The court observed in Allen, that the officers’ arrival, approach and shooting of Allen took only 90 seconds and that a jury could conclude that their actions “were reckless and precipitated the need to use deadly force.”
The court in Ceballos observed that the circumstances in Allen were closely analogous to the Ceballos situation. The court explained that “Officer Husk shot and killed an emotionally distraught Ceballos within a minute of arriving on scene. Under the Estate’s version of the facts, which Husk accepts as true for purposes of this appeal , Husk approached Ceballos quickly, screaming at Ceballos to drop the bat and refusing to give ground as Ceballos approached.”
The court ruled that its prior decision in Allen gave Officer Husk clear notice that reckless officer conduct prior to but immediately connected to the use of deadly force can result in a finding of excessive force.
- Some federal circuit courts have adopted a narrow view and limit the scope of the lethal force examination to facts that occur only at the moment deadly force was used by the law enforcement officer.  Others have adopted a broad view that will include facts deemed relevant leading up to the shooting as well. 
- It is clear from the Allen and Ceballos decisions that the Tenth Circuit, which covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, falls into the category of circuits that take a broad view of the scope of the deadly force inquiry.
- Ceballos demonstrates that the Tenth Circuit will analyze and examine officer conduct leading up to and directly connected to the use of deadly force. Moreover, this Circuit appears ready to label questionable pre-shooting officer conduct as “reckless” and rule that the officers caused the confrontation that resulted in the death of the suspect. 
- The Tenth Circuit’s approach is not officer friendly and requires law enforcement managers to ensure that officers receive crisis intervention training for their interaction with potentially dangerous mentally ill and emotionally disturbed subjects.
- At a minimum, all officers should be trained to attempt to de-escalate potentially dangerous interactions with emotionally disturbed persons if safe to do so. This would include learning to recognize the obvious signs of mental illness; maintaining a safe distance from the suspect with appropriate cover; communicating in a calm and non-aggressive manner; avoiding close quarter confrontation and harsh commands; seeking time to enable supervisory personnel, perimeter assistance and other more extensively trained crisis intervention officers and mental health professionals to arrive and assist.
In Ceballos, failure to train allegations were made against the City regarding the handling of mentally ill and emotionally disturbed individuals. The Tenth Circuit declined to address those issues and left them for initial resolution by the lower court. Nonetheless, the proper response and handling of mentally ill/potentially dangerous subjects is clearly a significant problem in law enforcement today.
Some federal circuit courts, the Ninth  and Tenth Circuits in particular, appear ready and willing to rule against officers and their municipalities when deadly force is used quickly in matters involving mentally ill subjects.
1. Husk claimed that he also saw a knife in Ceballos’ hand before the shooting but admitted that his only commands were to drop the bat. No other officer saw a knife during the suspect’s approach and a firefighter reported seeing a closed pocketknife fall from Ceballos’ pocket after he was shot.
2. Ceballos v. Husk; City of Thornton, (No. 17-1216) (10th Cir. 2019).
3. Federal appellate cases construing a claim of qualified immunity by an officer must accept the plaintiff’s version of disputed facts as correct for purposes of the appeal. If the officer’s appeal is rejected and the case results in a jury trial, it will be up to the jury to decide which version of disputed facts is correct.
4. See for example, Plakas v. Drinski,19 F.3d 1143 (7th Cir. 1994; Rockwell v. Brown, 664 F.3d 985 (5th Cir. 2011) and Cass v. City of Abilene, 814 F.3d 721 (5th Cir. 2016).
5. See for example, Young v City of Providence Napolitano, 404 F.3d 4 (1st Cir. 2005) and Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999).
6. The United States Supreme Court recently reversed a Ninth Circuit decision that was based upon the Circuit’s “provocation rule,” which held that police officers could be held liable for an otherwise lawful use of deadly force because they intentionally or recklessly provoked the situation that resulted in the shooting and their conduct violated the Fourth Amendment in a related but separate manner. See County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017). Upon remand from the Supreme Court the Ninth Circuit reinstated the ruling against the officers involved in the Mendez shooting. The Ninth Circuit ruled in Mendez v County of Los Angeles, 897 F.3d 1067 (9th Cir 2018) that “the judgement shall be amended to award all damages arising from the shooting in the Mendez’s favor as proximately caused by the unconstitutional entry, and proximately caused by the failure to get a warrant.”
7. The Ninth Circuit covers the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and the U.S. Territories of Guam and the Northern Mariana Islands.