Officers Not Required to Wait for Knife-Wielding Suspect to Close Within 21-Feet

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Buchanan v. City of San Jose, 2019 (9th Cir. 2019)

A caller alerted a 911 operator that an unknown man armed with a knife was in his home and threatening to kill his family. He explained he had locked himself and his kids inside the house and asked that help be sent quickly. Within two minutes, San Jose Police Department police officers arrived near the scene but parked several houses away to consider their approach. After the officers got out of their car, a man in front of the caller’s residence immediately started toward them.

From a distance over 130 feet, the man first walked toward the officers and then accelerated into a run at full stride. When officers saw the man was holding a knife, they took several steps backwards and gave repeated commands for him to stop. When he reached approximately 55 feet from the officers, they opened fire. According to court records, he travelled another 37 feet toward the officers before falling with the knife still clutched in his hand.

Police soon learned the man who had charged at them was Phillip Watkins. Family and friends later reported Watkins was suicidal and he had repeatedly threatened to kill his ex-girlfriend and himself. Just prior to the shooting, Watkins’ ex-girlfriend locked their kids in a car, believing Watkins was going to come after them. The police would also learn the original 911 call came from Watkins himself, who intentionally provoked the armed confrontation hoping to commit “suicide by cop.” He was successful.

[T]he court reminded readers that officers are not required to use the least intrusive means of responding to exigent situations: “They need only act within that range of conduct [the court] identifies as reasonable.”

In statements given to the San Jose Police Department, Watkins’ ex-girlfriend said the officers should have used a TASER device on Watkins or, alternatively, just shot his hand off or injured him. The ex-girlfriend’s mother expressed similar concerns, believing they could have shot Watkins in the leg or the arm. Both decided to file a civil lawsuit against the officers who had rushed to save their lives, and the lives of their children, claiming in part the officers had used excessive force.

The District Court found the officers had acted reasonably and granted summary judgment on qualified immunity grounds. The case was appealed to the United States Court of Appeals for the 8th Circuit.

As the appeals court scrutinized the officers’ conduct, one judge seized on the police department’s “21-foot rule” and argued, “[Under the policy], a person armed with a dangerous weapon, such as a knife or bat, constitutes a danger to the safety of the officer when that person is at a distance of 21 feet or less from the officer. Thus, under the Department’s own 21-foot rule, [the suspect], at a distance of 55 feet, presumptively did not pose an immediate threat to the safety of the officer when he was shot.”

The remaining judges disagreed with the dissent’s reading of the 21-foot “rule” and implicitly rejected it as a rule at all. The court held, “The 21-foot rule provides that a person at a distance of 21 feet or less may pose a threat to the safety of an officer. It does not follow from this rule, or any other, that armed suspects never pose a threat beyond 21 feet.” With this observation, the court upheld the grant of summary judgment.

In upholding the grant of summary judgment, the appeals court made an additional finding that merits attention. When the plaintiffs argued officers should have fired a TASER device at Watkins, the court credited the officer’s belief that a TASER device would not have been an appropriate option under these circumstances. In citing Scott v. Henrich (39 F.3d 912, 915 (9th Cir. 1994)), the court reminded readers that officers are not required to use the least intrusive means of responding to exigent situations: “They need only act within that range of conduct [the court] identifies as reasonable.”

At the summary judgment stage, courts can uphold qualified immunity without expressly condoning or condemning an officer’s conduct. In those cases, the court merely holds it would not have been obvious to a reasonable officer that the suspect’s constitutional rights were violated. Readers are then left to debate whether the court meant there was no violation or that it simply wasn’t obvious enough to hold the officer accountable.

In this case, both the District Court and the Court of Appeals sent a much clearer message, holding that, under these facts, the officers acted reasonably and the immediate threat to the officers justified their use of deadly force.

The originator of the 21-foot principle, Dennis Tueller, provides great insight into the human factors behind the principle in a recent video. Click here to watch.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Note: This blog was written by Von Kliem, guest editor of Xiphos. Von is a fellow Force Science Advanced Specialist and a member of the Lexipol legal team. For more information about the Buchanan case, click here to read Von’s article featured in Force Science News.

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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