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The incremental erosion of the Graham v. Connor constitutional use of force standard

The Rollice case is the latest in a series of questionable decisions involving police shootings where lower courts examine officer pre-shooting conduct

Officer with weapon (1).JPG

The language in Graham v. Connor makes it clear that the Supreme Court understood the unique and potentially lethal challenges officers face daily.


In 2018, George Washington University Law School Professor Cynthia Lee authored a University of Illinois Law Review article in which she proposes the adoption of a model statute on police use of deadly force. [1] The model statute includes a requirement that judges and juries review whether officers who used deadly force engaged in pre-shooting conduct that increased the risk of a deadly confrontation. [2]

The article explains that the “term ‘pre-seizure conduct’ is used to refer to conduct by the officer prior to the shooting that helped create the dangerous situation or increased the likelihood that deadly force would need to be used.” [3]

GW Today reported in June 2020 that the District of Columbia “D.C. Council” passed emergency legislation that includes Professor Lee’s model statute. [4]

Language like the model statute has already been embraced by some federal courts and at least one state legislature in the United States. [5] If this trend continues, it will fundamentally alter the intent of the United States Supreme Court’s use of force (including deadly force) “objective reasonableness” standard articulated by the court in Graham v. Connor. [6]

The Supreme Court’s “objective reasonableness” standard

The U.S. Supreme Court first addressed law enforcement’s use of deadly force in Tennessee v. Garner. [7] The Garner court set forth a constitutional standard for the use of deadly force as follows, “We conclude that such [deadly] force may not be used unless … the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” [8]

Following Garner, the Supreme Court further explicated the constitutional standard for police use of deadly force in Graham v. Connor. Here the court ruled “all claims that law enforcement officers have used excessive force – deadly or not … should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” [9]

The Court instructed: “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” [10]

Moreover, the Court explained, “The calculus of reasonableness must embody allowance 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.” [11]

Language of this nature makes clear that the Supreme Court understood the unique and potentially lethal challenges officers face daily.

The Court directed the lower courts to consider the facts and circumstances in each shooting incident from the perspective of a reasonable officer on the scene of the event as it happened and not from the secure confines of the courtroom or the judge’s chambers.

The Court instructed future courts to comprehend the fact that police officers face deadly adversaries in situations where instantaneous decision-making is required and chaotic situations where time for careful planning is nonexistent; and that these situations evolve so rapidly that a moment of hesitation will result in death or serious bodily injury to officers and innocent bystanders. [12]

The Court counseled future judges and jurors to avoid the temptation to engage in 20/20 hindsight. In fact, the Court made this approach abundantly clear when it said, “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers” [13] is a violation of the Fourth Amendment. The Court adopted a “totality of circumstances” test, but its analysis directed focus on the circumstances facing the officers at the moment of the shooting.

Nowhere in its opinion does the Court specifically instruct or direct lower courts to review, consider or examine pre-shooting police conduct. In fact, the Court made its view clear by stating, “with respect to a claim of excessive force, the same standard of reasonableness at the moment [of the use of deadly force by officers] applies.” [14]

Some Federal Appellate Courts Erroneously Examine Pre-Shooting Police Conduct

The Tenth Circuit frequently disregards the Supreme Court’s direction in matters involving police use of deadly force. The most recent example is found in the case of Bond v. City of Tahlequah et al. [15]

On August 12, 2016, Tahlequah, Oklahoma police received a 911 call from the ex-wife of Dominic Rollice. She stated that Rollice entered her garage, was drunk and refused to leave. Officers’ Vick and Girdner responded and spoke with Rollice at the side door of the garage. During the conversation, Rollice kept fidgeting with his hands.

Girdner asked Rollice if he could pat him down but he refused. Girdner stepped toward Rollice and Rollice stepped away and into the garage. A third officer arrived and all three followed Rollice into the garage.

Girdner ordered Rollice to stop but he continued until reaching the back of the garage. Rollice grabbed a hammer from a workbench and turned to face the officers. The officers stepped back and drew their firearms.

Rollice held the hammer with both hands in a baseball-type stance while facing the officers. He dropped his left hand and pointed it forward, signaling the officers to stop. He next moved the hammer in his right hand to just above his head. The officers ordered Rollice repeatedly to drop the hammer, but he repeatedly refused. Instead, he moved slowly to the officers’ left about 8–10 feet from Girdner.

Officer Reed holstered his firearm and drew his TASER. Reed took a few steps toward Rollice and ordered him again to drop the hammer without success. Rollice pulled the hammer back behind his head but was still speaking “relatively calmly, with one hand outstretched.” In response to Rollice’s movement of the hammer behind his head, Officers’ Girdner and Vick fire several shots. Rollice doubled over into a squat-like stance and raised the hammer again. Girdner fired one more round. Rollice died from his wounds.

Rollice’s estate filed suit pursuant to 42 U.S.C. §1983 alleging excessive force against the officers who shot Rollice in violation of the Fourth Amendment. The federal district court ruled in favor of the officers and the estate filed an appeal.

The Tenth Circuit reversed and stated that in its analysis of officer-involved shootings, “Officers’ conduct prior to the seizure [i.e. shooting] is also relevant to this inquiry.” The court explained, “The reasonableness of [officers’] 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.” [16]

The court stated that its shooting examination will include “whether the officers approached the situation in a manner they knew of should have known would result in an escalation of danger.”

Analysis of the Tenth Circuit’s Decision

The Tenth Circuit sent the case back for trial. The court expressed a lack of certainty on whether Rollice’s conduct at the moment he was shot rose to the level of an immediate deadly threat against the officers. Nevertheless, the court stated, “We need not and do not reach any conclusion on that issue [the immediacy of the threat] because our review is not limited to that narrow timeframe. Instead, we consider the totality of circumstances leading to the fatal shooting, including the actions that resulted in Dominic being cornered in the back of the garage by three armed police officers.”

The court explained that the reasonableness of the officers’ conduct included not only the danger presented by the suspect at the precise moment of the shooting but also whether their own reckless or deliberate conduct unreasonably created the need to use such force.

The court observed that an officer first stepped toward Rollice at the garage door causing him to retreat into the garage. The court next blamed the officers for cornering him at the back of the garage and stated that the officers were now “blocking the only exit from the garage.” The court further opined, “When Dominic pulls the hammer back, he does so in response to Officer Reed’s advance with the TASER.”

The court concluded by stating that a reasonable jury could find that the officers created a lethal situation “by driving Dominic into the garage and cornering him with his tools in reach” and their “reckless conduct unreasonably created the situation that ended Dominic’s life.”


The Rollice case is the latest in a series of questionable decisions involving police shootings in the Tenth Circuit. [17] In these cases, the Tenth Circuit pays lip service to the Supreme Court’s opinion in Graham v. Connor but then proceeds to ignore the Court’s direction and guidance and looks backward to examine officer pre-shooting conduct. This involves 20/20 hindsight pure and simple.

The Supreme Court instructed the lower courts to avoid 20/20 hindsight; place themselves in the shoes of involved officers; recognize the chaotic split-second life-threatening decisions facing frontline responders; and decide whether officers were facing life-threatening conduct at the moment they used deadly force.

Instead, this circuit and at least one other, [18] has chosen to disregard the instruction of the Supreme Court and instead create an additional hurdle to overcome for officers defending excessive force lawsuits. If the Supreme Court fails to issue a definitive ruling to stop this kind of lower court activity, the trend is likely to expand to additional federal circuits. Certainly not good news for American law enforcement.

1. Lee C. Reforming the Law on Police Use of Deadly Force: De-Escalation; Pre-seizure Conduct, and Imperfect Self-Defense, 2018 U. Ill. L. Rev. 629.
2. Id. at 663.
3. Id. 671.
4. Hopkins T. DC Adopts GW Law Professor’s Model Legislation on Police Use of Force, GW Today, 6/12/20.
5. The California Governor signed into law California Assembly Bill AB 392 on 8/19/20 changing the way in which the use of force by peace officers is regulated in the State. In addition to changing the standard for the use of deadly force from a “reasonable belief” to “necessary,” the new law defines “totality of circumstances” to include, “conduct of the officer … leading up to the use of deadly force.” The new law will goes into effect on 1/1/21.
6. 490 U.S. 386 (1989).
7. 471 U.S. 1 (1985).
8. Id. at 3.
9. 490 U.S. 386, 395 (1989).
10. Id.
11. Id.
12. FBI Law Enforcement Officers Killed and Assaulted (LEOKA) statistics for 2019 show that between 2010-2019, 511 officers were murdered in the United States; 404 of those officers (79.1%) did not fire their weapons to defend themselves while facing certain death. This statistic tells the grim truth; those officers were murdered so quickly that they never had a chance to defend themselves.
13. Id.
14. Id.
15. (No. 19-7056) (10th Cir. 12/1/20).
16. (Quoting), Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995).
17. Other Tenth Circuit cases with similar outcomes include Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997) (Allen was suicidal and armed with a handgun that he fired at police); Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019) (Ceballos approached officers with a bat before being shot); Hastings v. Barnes, 252 F. App’x 197 (10th Cir. 2007) (unpublished) (Suspect threatened officers with Samurai sword before being shot).
18. The United States Supreme Court recently reversed a Ninth Circuit decision that was based upon the Circuit’s so-called “provocation rule” which held that police officers could be held liable for an otherwise reasonable use of deadly force because they intentionally or recklessly provoked the circumstances that resulted in the use of deadly force and their conduct also violated the Fourth Amendment in a separate but related manner, See, County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017). In Mendez, officers entered Mendez’s dwelling illegally without a warrant and shot Mendez and a companion after Mendez picked up what appeared to be a firearm (later found to be a BB gun) and pointed it at the officers. Upon remand from the Supreme Court the Ninth Circuit reinstated the ruling against the officers involved in the Mendez shooting. The court ruled in its second decision in this case that “the judgment 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.” See, Mendez v. County of Los Angeles, 897 F.3d 1067 (9th Cir. 2018).

John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement.

Contact Mike Callahan.