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Officer-created danger theory lives on

Parents sue for excessive force based on “officer-created danger,” but qualified immunity granted based on suspect’s manifest intentions

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The case reminds officers that body-worn camera video can be a powerful tool in documenting the reasonableness of their actions.


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FLORES V. HENDERSON, 2024 WL 2141769 (10th Cir. 2024)

Shamikle Jackson called 911 stating that two people were dead inside an apartment and he was holding others hostage. Jackson claimed it was a “life-threatening emergency” that was “happening now.” He said he was armed with a machete, his victims needed medical attention, and his hostages were tied up and “very much” in danger.

When officers arrived, they announced themselves, and someone — presumably Jackson — called out that officers would have to “come and get me.” Jackson’s sister then came to the apartment door, showing no apparent signs of distress. She said her brother was in the apartment, but she did not know whether anyone inside was hurt. Four officers entered the apartment as another officer spoke with the sister. The four officers heard a radio message that the sister believed Jackson was alone, unarmed and possibly having mental health issues.

As the officers continued down a hallway toward the back bedroom, an officer tried to kick open the bedroom door, but it was blocked from behind the door. Jackson came out of the bedroom and advanced on the officers with a machete in hand. As he continued to advance, an officer fatally shot him. Jackson’s parents sued, alleging the officers used unconstitutionally excessive force.

The trial court denied the officers’ request for summary judgment, ruling that “the officers were aware there were no hostages because they had entered Jackson’s bedroom before the shooting.”

Notwithstanding the trial judge’s version of the facts, plaintiffs acknowledged the officers did not enter the bedroom before encountering Jackson in the hall and the body-worn camera recording conclusively corroborated this fact. The trial judge ruled the officer who shot Jackson “recklessly created the need to use deadly force in violation of clearly established law,” and the other three officers unreasonably “failed to intervene.” The court of appeals stated it would “accept the district court’s factual findings to the extent such facts are not inconsistent with bodycam footage and audio.”

In County of Los Angeles v. Mendez (581 U.S. 420 (2017)), the Supreme Court rejected the 9th Circuit Court of Appeal’s application of a “provocation rule.” The Court held that “once a use of force is deemed reasonable under Graham v. Connor, it may not be found unreasonable by reference to some separate constitutional violation.” The Court called the provocation rule “an unwarranted and illogical expansion of Graham.”

The Supreme Court’s ruling on the “provocation rule” left open the question of whether alleged unreasonable police conduct prior to the use of force should be considered in the analysis of the need for force. Some federal circuit courts of appeal permit consideration of an officer’s alleged reckless conduct when evaluating the reasonable use of force, including the 1st Circuit (Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005)); 7th Circuit (Biegert v. Molitor, 968 F.3d 693 (7th Cir. 2020)); and 9th Circuit (Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir. 2018)). Others do not, such as the 2nd Circuit (Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996)) and the 4th Circuit (Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996)). The 10th Circuit’s decision in this case reinforces that it will “consider whether an officer’s reckless or deliberate conduct during the seizure unreasonably created the need to use such force.”

The appellate court reversed the trial court decision denying qualified immunity to the four officers confronted by Jackson. The court began with the requisite analysis of the Graham v. Connor factors. The first factor considers the severity of the crime at issue. The court noted the crime reported by Jackson was “a serious crime if true.” Plaintiffs claimed Jackson’s crime was merely falsely reporting an emergency. The court held that even considering the information from the sister, the officers had “every reason to believe” Jackson might pose a threat to himself or others.

The second Graham factor considers whether the suspect posed an immediate threat to the safety of the officers or others. The court described the second factor as “undoubtedly the ‘most important’ and fact intensive factor in determining the objective reasonableness of an officer’s use of force.” As the court assesses the seriousness of a threat, it looks at several non-exclusive factors, including:

  • Whether the officers ordered the suspect to drop his weapon.
  • Whether the suspect complied with the order.
  • Hostile motions made with the weapon toward the officer.
  • The distance separating the officer and the suspect.
  • The “manifest intentions” of the suspect.

In this case, each of the factors turned in favor of the officers. Jackson refused to comply with the officers’ commands to come out of the bedroom and to show his hands. As he came out, he charged the officers with a machete. He was only a few feet from the officers when he exited the room, machete in hand. Jackson’s manifest intention was to cause harm.

At this point in the analysis, the court questioned whether the officers’ actions unreasonably created the need to use force against Jackson. The court considers whether the officers “recklessly” precipitated the need for force. In other words, did the officers consciously disregard a known or obvious risk that their action created an unreasonable risk of harm? Plaintiffs claimed the officers should have backed out and tried de-escalation tactics once they heard the radio message that Jackson might have been alone, might have been unarmed, and was possibly suffering from mental illness.

The appellate court held the officers had a split second to choose how to respond to the deadly threat posed by Jackson’s initial report and the subsequent information from the sister. Jackson had reported that “two people were dead, that he had a machete, and that his hostages only had a few minutes left.” The court held that a “reasonable police officer, whether the new information was accurate or not, could have wanted to visibly confirm Mr. Jackson was secure and nobody else was in the bedroom before retreating.”

The third Graham factor asks whether the suspect is actively resisting arrest or attempting to evade arrest by flight. The court noted, “Jackson was certainly resisting a reasonable investigative detention — he refused to come out, told the officers they would have to come and get him, blocked his bedroom door when the officer tried to open it, and advanced toward the officers with a machete in hand.” Because of this, the court held, “We conclude ‘a reasonable officer standing in the shoes of at the time of his encounter … would have felt justified in taking the steps that led to the use of deadly force.’”

Finally, the court held the three officers who did not fire could not be liable for failure to intervene. Though the law is clearly established that “an officer who fails to intervene to prevent a fellow officer’s excessive use of force may be liable under § 1983,” there must be an underlying clearly established constitutional violation. Because the defensive use of deadly force did not violate Jackson’s clearly established rights, there could be no failure to intervene by the other officers.

The court’s decision affirms the 10th Circuit will consider alleged poor tactical decisions that precede a shooting or other use of force as part of the facts and circumstances in the assessment of reasonableness of the force. The case also reminds officers that body-worn camera video can be a powerful tool — as it was in this case — in documenting the reasonableness of their actions. The body-worn camera provides a unique and powerful tool for the officer to be script writer, director, and star of the movie that illustrates the officer’s critical decisions and actions. The video was the officers’ great friend in this case.

Read more Ken Wallentine case reviews here.

Ken Wallentine is the chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.