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The 4th Amendment and deadly force

Officers don’t have to exhaust all available force options

By Laura L. Scarry

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Assume a police officer faces the following deadly force situation: He responds, along with two other officers, to a residence as a result of a 911 call from the homeowner. Dispatch reports the homeowner’s son threatened her with a steak knife, but she was able to escape from the residence.

When all three officers arrive, the first officer meets with the homeowner outside the residence. She tells him she suspects her son is abusing cocaine and that he is threatening to commit suicide. She says she wants her son transported to a mental-health hospital for an evaluation. She also tells the officer she does not know if her son is still armed and that he may now be in the basement.

To further assess the situation, the officers enter the house in an attempt to establish a dialogue with the individual. In doing so, they observe the individual standing at the bottom of the stairs leading to the basement holding a steak knife. The first officer takes his firearm out of its holster. He has no other weapons—no baton, Taser or pepper spray—on his person.

The first officer tries to determine why the individual is distraught; however, as the individual talks, he keeps moving to the side, further into the basement away from the officers’ view. In response to the individual’s movements, the second and third officers, who carry firearms, a Taser and a canister of pepper spray, exit the residence to determine whether doors or windows can offer a better view of the individual, if other individuals are present and if the individual has access to other weapons.

Immediately after the second and third officers leave the first officer alone in the residence, the individual reappears at the bottom of the stairs armed with the knife raised in a stabbing position. He is enraged and suddenly leaps up the stairs in two hops, yelling that he is going to kill the officer. The officer is utterly surprised as he rapidly steps backward, raising his weapon in the direction of the threat and shooting five times. Two shots hit the body, and the individual dies moments later.

Obviously, this imperfect scenario wrought with tactical errors could result in a civil rights lawsuit against the officers and the governmental entity that employs them. Typically, these types of civil lawsuits are filed in federal court under 42 U.S.C. § 1983 (see “The Statute,” p. 75) alleging the officers and governmental agency violated the individual’s rights under the Fourth Amendment to the United States Constitution. Obviously, the defense will state no constitutional violation occurred. Is the defense correct?

The 4th Amendment

A police officer’s successful use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable. The fact-specific nature of whether an officer’s use of force is unreasonable or excessive depends on the totality of the circumstances surrounding the encounter. Further, the issue of whether an intentional use of deadly force by a police officer is permissible under the Fourth Amendment requires an objective reasonableness inquiry.

Additionally, the particular use of force must be judged from the perspective of a reasonable officer on scene, rather than with 20/20 hindsight. Moreover, any judgment must allow for the fact that police officers are often forced to make split-second
judgments—in tense, uncertain and rapidly evolving circumstances—about the amount of force necessary in a particular situation.

When an officer believes a suspect’s actions place them, their partner or those in the immediate vicinity in imminent danger of serious bodily injury or death, the officer can reasonably exercise the use of deadly force. Typically, if the suspect threatens an officer with a weapon, that risk has been established.

In the hypothetical scenario presented above, the attorneys representing the shooting victim might argue that the police officer who fired the fatal shot should have carried other weapons on his person or, if the city policy did not mandate all officers carry Taser and/or pepper spray, the city should have established such a policy. Surprisingly, law enforcement trainers and top-level administrators have fallen victim to this way of thinking. However, as discussed below, there is no constitutional mandate that officers carry or use other non-lethal weapons before resorting to deadly force when confronted with the same.

Of course, in retrospect it’s easy to say the police officers should have waited for a supervisor or a SWAT team, used some other maneuvers or carried other weapons, but Graham v. Connor makes it clear that the Fourth Amendment does not require second-guessing if a reasonable officer making rapid decisions under uncertainty perceived a need to act.2 This type of armchair quarterbacking simply has no relevance to the reasonableness inquiry under the Fourth Amendment.

Unfortunately, some law enforcement trainers incorrectly state officers should exhaust every reasonable option before using deadly force. Some trainers assert officers should react to an offender’s aggression with the minimum amount of force necessary to achieve the lawful objective in deadly force situations. Under the Fourth Amendment, these assertions are just plain wrong. The Fourth Amendment does not require police officers to exhaust all other options in a deadly force situation before resorting to deadly force; to require that of police officers in stressful, rapidly evolving situations leaves them vulnerable to serious injury or death.

The Bottom Line

So, what does this all mean to the officer who fired the fatal shot in our scenario? It means the officer (and the city) should not be liable under the Fourth Amendment for failing to use or supply less-intrusive alternatives to stop the threat of deadly force if he reasonably believed he (and/or his partners) would suffer great bodily harm or death. The Fourth Amendment does not require an officer to use the least-deadly or less-deadly force as long as it was reasonable for the officer to use deadly force.

The use of deadly force to stop an enraged, possibly suicidal individual with a history of drug abuse from charging at an officer while wielding a knife is reasonable. The individual was threatening the safety of the officer, and it was constitutionally permissible for the officer to use deadly force. Even if one of the officers equipped with a Taser and/or pepper spray were standing on the stairs instead, the knife-wielding man’s sudden approach would present a threat sufficient to justify his use of deadly force without first exhausting all force options. Officers may avail themselves of all the tools at their disposal, but are not required to do so as a matter of law.

Remember: The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but whether the seizure (in this case, the shooting) was objectively reasonable to someone standing in the officer’s shoes—and it was.

    Excerpt from Smith v. Freland
    “Under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”
    —excerpted from Smith v. Freland, 954 F2d 343, 347 (6th Cir. 1992)

    The Statute
    “Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or territory subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress.”
    —42 U.S.C. § 1983

Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue

Laura L. Scarry is a partner in the law firm of Myers, Miller & Krauskopf in Chicago, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986-1992.

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