Officer Justified in Shooting Man with Gun to His Own Head?

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Partridge v. City of Benton, (8th Cir. 2019)

Keagan Schweikle was depressed after being suspended from school. His mother reported he threatened to shoot himself and left the house after ingesting cough syrup and possibly marijuana. An officer, using a police service dog, located Schweikle a short time later.

The officer saw Schweikle had a gun in his right hand and ordered Schweikle to drop the gun. Schweikle raised the gun to his right temple. The officer repeated his commands to drop the gun. Schweikle did not respond verbally but began to move the gun away from his head. The officer fired, striking Schweikle twice and killing him.

Schweikle’s parents sued. As is the case in most lawsuits alleging excessive force, the core question is whether the officer acted objectively reasonably in light of the facts and circumstances. The parents claimed Schweikle “simply began to move the gun away from his head” in response to the officer’s repeated orders to drop the gun.

The trial court granted qualified immunity to the officer, stating it would have “been nearly impossible for [the officer] to tell whether Schweikle was moving the gun away from his head to comply with [the officer]’s order or if he was repositioning the gun to aim it at the officers.”

This case reminds officers of the need to give short, clear commands directing a subject to make specific movements intended to conclude with the subject moving away from a gun or other weapon.

The appellate court reversed the decision, observing that Schweikle had to move the gun in some fashion to comply with the order to drop the gun. The facts available to the court (because the district court granted qualified immunity, no trial had yet been held) did not resolve whether Schweikle was moving the gun in the direction of the officer or away from him. Nor did the record contain any information about the officer’s subjective belief about the threat Schweikle posed as he moved the gun.

The appellate court cited several prior cases granting qualified immunity to officers who believed suspects posed serious threats justifying deadly force, based on the officers’ perceptions (even if mistaken) that suspects pointed a gun in their direction. In this case, the court simply did not have the factual record to make an informed ruling on qualified immunity. Nonetheless, the court stated Schweikle may have slowly lowered the gun while pointing it away from the officer. If true, it would be “so obviously an attempt to comply with commands to drop the [gun] that a reasonable officer would have known that opening fire would constitute excessive force.”

Before resolving the question of whether the lawsuit against the officer should proceed, the trial court must allow for development of the factual record. Most officers have either observed or been a part of frenetic shouting of inconsistent commands, such as: “Don’t move. Hands up!” Is the subject expected to not move or to move his hands into the air? This case reminds officers of the need to give short, clear commands directing a subject to make specific movements intended to conclude with the subject moving away from a gun or other weapon.

Ken Wallentine

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 three 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.

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