Inclusive in the current insanity gripping our nation is the notion that courts should focus on how police officers are purportedly creating the need to use deadly force. I say “insanity” because there is an increasing willingness of certain factions of society to turn a blind eye to the conduct of the suspect who put the officer in the position of making a split-second decision: Use deadly force or join the 128 fellow officers who paid the ultimate price in 2017. Much of the media coverage quickly sets aside important facts, such as that Michael Brown (Ferguson, MO) had just robbed a store and struggled with an officer or that Stephon Clark (Sacramento, CA) had broken car windows and a sliding glass door before jumping a fence into a backyard.
To be sure, it’s a tragic situation when an unarmed person is killed in an officer-involved shooting. But it’s also problematic to fail to see the role suspects play in elevating situations to ones in which use of deadly force is justified. Yet that is exactly what we hear in the push to enact misguided policies or legislation such as California’s AB931, which seeks to restrict the use of deadly force to only “necessary.” Just once it would be great to ask the people behind such efforts whether they’re willing to run into an active-shooter situation, or who they’ll be calling when they hear their downstairs window break at two o’clock in the morning.
Assuming the California legislation (and similar efforts) is defeated, we can only hope the U.S. Supreme Court continues to recognize the real-world circumstances facing law enforcement every day.
Way back in 1989, the Court established a very realistic and practical test to analyze virtually any application of force used by law enforcement. In Graham v. Connor (109 S.Ct. 1865), the Court declared that all force must be “objectively reasonable” and judged “from the perspective of a reasonable officer on scene rather than with the 20/20 vision of hindsight.”
And in response to the idea that courts should focus solely on the conduct of the involved officer(s), the late, great Justice Scalia acknowledged that courts must take into consideration the culpability of the suspect’s criminal, intentional or even reckless conduct that created the need for the officer’s response (Scott v. Harris, 127 S.Ct. 1769 (2007)). More recently, in Plumhoff v. Rickard (134 S.Ct. 2012 (2014)), the Court again recognized the need to consider the suspect’s reckless behavior that created a substantial risk to the officers and public.
Despite efforts of courts such as the 9th Circuit to create a so-called “provocation rule”—suggesting an officer’s otherwise use of reasonable force could somehow be nullified by the officer “provoking” such a response—the Supreme Court continues to restore faith in the real world. In fact, the Court recently struck down the 9th Circuit’s “provocation rule” in Los Angeles v. Mendez (137 S.Ct. 1865 (2017)), recognizing an ultimately reasonable use of force cannot be rendered unreasonable because of an officer’s “unreasonable” conduct leading up to the reasonable use of force. However, it’s important to note that while the Court found liability may not arise from the eventual use of reasonable force, liability may still separately attach to an independent constitutional violation preceding the eventual use of reasonable force (e.g., an unlawful entry).
While the U.S. Supreme Court fortunately seems to maintain some degree of common sense, other courts seem to buy into the notion of blaming officers for creating the need for force. In the rather troubling case of Hayes v. Co. of San Diego (57 Cal.4th 622 (2013)), the California Supreme Court has now added an additional factor to the “totality of circumstances” analysis long ago established by the U.S. Supreme Court in Graham. Specifically, the California Supreme Court now permits jurors to consider an officer’s “pre-shooting conduct” to determine whether the officer had a duty to approach the ultimate use of force more reasonably. As one can imagine, there is a steady flow of so-called “experts” willing to sell their services to offer 20/20 hindsight and testify that the officer could have approached the situation in a “better way”—which, in their humble (high-priced) opinion, never would have led to the need to shoot the bad guy.
In trial, I always remind jurors that most people will never need to worry about getting shot by a cop because most people aren’t breaking into cars, robbing liquor stores or dealing drugs. We can and should place responsibility on agencies to provide training that provides officers with appropriate guidance when determining reasonable applications of force. But we should also place equal responsibility on the public to act lawfully. In nearly every officer-involved shooting, the suspect creates the classic “tense, uncertain, and rapidly evolving” circumstances—not the officer. Blaming the officer for making a split-second life-or-death decision in the face of these circumstances flies in the face of three decades of Supreme Court guidance.
“Bad” shootings can and will continue to happen, but they are extremely rare. We can only hope that our jurors and our courts continue to recognize that almost all on-duty shootings, while tragic for everyone involved, are objectively reasonable under the totality of the circumstances created by the suspect rather than the officer.