Wilson v. Prince George’s County: A Case of Unclearly Established Law

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Originally published on the Force Science Institute website. Republished here with permission.

Within hours of publishing , readers started asking us to look at Wilson v. Prince George’s County, Md.[1] Apparently this 4th Circuit Court of Appeals case has inspired policy revisions, training updates, and questions as to the relevance of the 21-Foot Principle. I read the case and immediately knew what to do. Nothing.

In Wilson, the court held that an officer had used excessive force when he shot someone standing about 20 feet away, who was refusing to drop the knife that he was cutting himself with and otherwise not threatening anyone or making any sudden movements. The suspect survived and successfully sued the agency. That the suspect had committed a previous misdemeanor involving force against another person did not alter the court’s view.

So far, the holding in Wilson doesn’t seem all that controversial. If he’s not a threat to you and he’s not a threat to someone else, it’s unreasonable to shoot him. Fair enough.

But the controversy surrounding the Wilson case isn’t the idea that police can’t shoot a nonthreatening suspect. We knew that already. Instead, the controversy is how the court decided this suspect was nonthreatening: He simply told them that he was and the court accepted it. Although the suspect refused to drop the knife and admitted to taking steps toward the officer, he explained that those four “stumbling” steps were the natural reaction to stabbing himself in the chest. He claimed he wasn’t a threat to the officer or anyone else; he merely wanted to commit suicide in front of his ex-girlfriend. Now, many of you familiar with the case have disagreed with the court. The officer in Wilson certainly did. And with good reason.

The Officer’s Version

While responding to a report of domestic violence, the officer learned that the suspect had kicked down his ex-girlfriend’s door. After breaking into her apartment, the enraged suspect loudly cursed at his ex-girlfriend and others. When the suspect finally left, the ex-girlfriend followed him out. When she tried to call the police for help, the suspect knocked her phone into a gutter and punched her in the eye before leaving.

As the officer was receiving the report from the ex-girlfriend, she warned him that the suspect was returning. The officer asked her to go back into her building so he could talk with the suspect, who by then could be seen walking toward the officer. The officer tried to talk to the suspect as they were approaching each other, but the suspect said nothing as he continued his approach. When the officer saw the suspect pull a shiny object from his pocket, he repeatedly told him to drop it. At an estimated 40 feet apart, the officer recognized the object as a knife and drew his weapon.

The suspect took several more steps toward the officer and began to stab himself in the chest.

The suspect stopped. He ordered the officer to go away and to “Let me do what I wanna do.” From there the suspect took several steps forward and appeared to be slitting his own throat. The officer pled with him to stop and assured him it wasn’t worth it. The suspect took several more steps toward the officer and began to stab himself in the chest.

At about 25 feet the suspect continued toward the officer, who then realized he couldn’t move back any farther without allowing the suspect access to the apartments. He also realized that the ex-girlfriend had not gone back into her building but was instead standing behind him with her family.

The suspect continued to walk toward the officer who repeatedly ordered him to drop the knife. When the suspect took four additional steps toward the officer, the officer shot him. The officer estimated the final distance to be between 10 – 15 feet. The ex-girlfriend estimated the distance was closer to 8 feet.

No Experts Allowed

So was the suspect a threat or not?

The officer seemed to think so. He even presented an expert report that a person armed with a knife standing 21 feet from an officer could rush toward, and cut, the officer before the officer could draw his weapon from its holster. The district court thought this was an important piece of information. However, the appeals court thought it was irrelevant.

In the court’s opinion, any reference to how fast an officer can draw a holstered weapon against a suspect 21 feet away is irrelevant when the officer had already drawn his weapon at 40 feet. (Never mind that the suspect was between 8 and 20 feet away at the time of the shooting.)

Yes, the court clearly missed the point of the action vs. reaction principles illustrated by the Tueller drill.[2] But before you are tempted to focus on the court’s narrow view of the 21-Foot Principle, please note: It didn’t ultimately matter.

That’s because the court wasn’t willing to credit the expert with any insights that conflicted with the plaintiff’s version of events. They added that it wasn’t their place to decide if the expert was credible. That’s a job for the jury. In the court’s view, they were only looking at the plaintiff’s version of events and, with that, they simply sidestepped any police practice or human factors applications, concluding that the suspect was not an immediate threat.

Just the Plaintiff’s Facts, Ma’am

Was the court right? Sort of.

In summary judgment cases, the court is required to accept the plaintiff’s version of the facts and, if there is a genuine dispute as to those facts, the court must interpret those facts with inferences that are most favorable to the plaintiff.

Even if every reasonable person on the planet believes the officer’s version of events is more credible, the court at the summary judgment stage is not allowed to weigh evidence or make credibility determinations. So unless there is evidence in the record that blatantly contradicts the plaintiff, such that no reasonable person could believe it, the court must simply accept the plaintiff’s version of the facts.

The Wilson court searched for cases that were close enough to the facts of their case that they could say the officer should have known better.

Now many of you are asking, “What happened to the ‘reasonable officer’ standard?”

Good question.

How many times have we heard that police are judged by a reasonable officer standard?

We’re told use-of-force assessments must consider that police are often forced to make split-second decisions, in circumstances that are tense, uncertain, and rapidly evolving. We learn that courts are required to consider an officer’s training, experience, and reasonable inferences drawn from the totality of circumstances—inferences that might escape an untrained person.

If the question is whether it was reasonable for the officer to perceive the suspect as a threat, why is the court concerned with how the suspect viewed himself? I’m not sure they should have been. But I’m also not sure it matters. Ultimately the court gets to the right answer, they just took the long way to get there and confused a lot of people in the process.

Let’s look at how the court analyzed the case and you’ll understand what I mean. You’ll also understand why when the court says the officer engaged in excessive force, they didn’t mean he actually engaged in excessive force.

By Totality, I Mean Just Three

When analyzing excessive force claims, courts must simply answer whether, under the totality of the circumstances, the officer was reasonable. Some courts have curiously reduced the totality of circumstances approach down to just three factors: the Graham factors.

For those not familiar with the Graham factors, they were intended as examples of some circumstances that might be relevant as courts analyze police use-of-force cases. Some courts use them exclusively and other courts don’t use them at all. For those that do use them, the factors include the severity of the offense, whether the suspect poses an immediate threat to the safety of officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Each of these factors is to be judged through the lens of the reasonable officer.

And this is where the Wilson case takes a weird turn. The 4th Circuit Court of Appeals used the Graham factors exclusively to assess the officer’s use of force in Wilson. But instead of analyzing those factors through an officer’s perspective, they continued to view the factors through the lens of the suspect.

Because the suspect did not dispute that he kicked down his ex-girlfriend’s door and assaulted her, and because the officer was aware of these circumstances, the court determined the offense was reasonably characterized as “severe.”

Since the officer never attempted to arrest the suspect and the suspect was not attempting to evade the officer, the court asserted that the suspect “never resisted arrest.” (Note: Remember to tell your suspects that they’re under arrest.)

Finally, as to whether the suspect posed an immediate threat to the safety of the officer or others, the court answered that he did not.

The Plaintiff as Reasonable Officer?

When a court asks if a suspect posed a threat to the safety of the officer or others, it’s important to remember that they aren’t asking if the suspect was an actual threat, but instead whether it was reasonable for the officer to perceive the suspect as a threat. That’s why the perspective of the officer is so important.

But in Wilson, to determine whether a reasonable officer could have perceived the suspect as a threat, the court relied on the plaintiff’s version of the facts (which they must) but then interpreted those facts with inferences that only favored the plaintiff—which they are only required to do if the facts are in dispute.

Consider how that impacted the use-of-force analysis. It was undisputed that the suspect had a knife. The court didn’t consider what that meant to the officer, but instead dismissed it as a small knife only being used by the suspect on himself.

It was undisputed that the suspect refused to drop the knife. The court didn’t consider what that meant to the officer, but instead commented that the suspect claimed he never pointed it in the direction of anyone but himself. It was undisputed that the suspect took four quick steps toward the officer. The court didn’t consider what that meant to the officer, but instead simply characterized them as nonthreatening “stumbles.”

Because there was a dispute as to how far the suspect stood from the officer, the court was required to accept the plaintiff’s estimate of 20 feet. But even assuming 20 feet, the court refused to consider what that distance meant to an officer confronting an armed suspect. Instead, they simply concluded that the suspect was not a threat because this is what the plaintiff asserted.

Remember, the question the court is supposed to be answering: whether a reasonable officer could have perceived that the suspect posed an immediate threat to the safety of the officer or others. This is their question to answer, not a jury’s.

But instead of addressing the relevant Graham factor, the court concludes: “A jury could determine that [the suspect], standing 20 feet away and armed only with a pocket knife that he was using solely against himself, did not pose an immediate threat to [the officer] or others, thereby rendering [the officer’s] use of lethal force unreasonable.”

Whenever you read, “a jury could determine the officer was unreasonable,” you should also read, “a jury could determine the officer was reasonable.” In other words, it doesn’t tell you anything about the lawfulness of the officer’s conduct. The question before the court was whether a reasonable officer could have perceived the threat, and again, it was their question to decide.

Ultimately though, the court gets to the right answer. It took the return of the reasonable officer to get there.

The Reasonable Officer Returns

Once the Wilson court identified the relevant facts and interpreted them all in favor of the plaintiff, they finally invited the reasonable officer back into their analysis. That is because, even after the court found (in the plaintiff’s view) that the officer engaged in excessive force, they still had to determine whether it would have been clear to a reasonable officer that what the officer did was excessive.

This is because society only holds officers civilly accountable when they had “fair notice” that what they were doing was unconstitutional. That means, an officer is entitled to immunity unless it would have been obvious to every reasonable officer that what he is doing violates the law. Said another way, if there can be honest debate among officers as to whether a use of force was reasonable, then qualified immunity applies.

The court incorrectly analyzed all the facts through the plaintiff’s perspective, which makes the case useless as a measure of future police judgment and conduct.

So to answer this final question, the Wilson court searched for cases that were close enough to the facts of their case that they could say the officer should have known better.

First, the Wilson court compiled the plaintiff’s version of the facts and the plaintiff’s inferences from those facts and asked whether it would it have been clear to a reasonable officer that it was excessive to shoot an individual who: 1) was suspected of having committed a burglary and a battery; 2) was standing about 20 feet from the officer holding a knife, inflicting harm on himself and stumbling, but not threatening others or making sudden movements; and 3) was refusing to obey the officer’s repeated commands to drop the knife at the time he was shot?

Next, the court looked for cases in the 4th Circuit that would have sufficiently warned the officer that this conduct was illegal. They found none. Then, they looked through other federal circuits for cases that would have notified the officer of his lawlessness—another dead end.

Finally, after looking at the case law, the court found no reasonable officer would have known that the conduct described by the Wilson court was unlawful. Without such notice, the officer was entitled to qualified immunity.

Unclearly Established Law

When the court was looking at case law, it was hoping to find clearly established law—cases where an officer’s conduct, when viewed through the lens of reasonable officers, was found to have been unreasonable.

That is what makes Wilson such a problematic case. If the court would have analyzed the facts through the lens of a reasonable officer, telling us the officer engaged in excessive force would have meant something. It would have value in judging future cases and future conduct of the police.

But the court incorrectly analyzed all the facts through the plaintiff’s perspective, which makes the case useless as a measure of future police judgment and conduct.

Remember: Summary judgment cases are not trials. There are no evidentiary hearings or credibility tests. If there is a dispute as to evidence, the court just picks the plaintiff’s version. If the plaintiff claims one thing and 12 people claim something else, the court must believe the plaintiff. That means the case the court is evaluating for summary judgment may look nothing like the case once it goes to trial.

In Wilson, the scene the court felt required to evaluate involved a nonthreatening, suicidal suspect standing 20 feet away. It is likely that the case being evaluated by the court looked very different to the officer watching, experiencing, and interpreting it through the reasonable officer lens, which means the court wound up warning the officer (and the profession) not to do something that likely never happened.

Why Human Factors Still Matter

If you read the facts from the reasonable officer perspective, you also probably came to a much different conclusion than the court viewing the case from the perspective of the plaintiff. You likely identified and prioritized multiple government interests beyond just defense of self or others. You probably assessed the threats facing the officer and others by considering human factors, including the effect of splitting attention between de-escalation, communication, movement, environmental scans, and monitoring a medical emergency as it progressed.

You likely understood and considered time-distance studies like the 21-Foot Principle, speed of assaults, sprint studies, and action-reaction relationships. You understood that threat assessments and responses are educated guesses affected by perceptions and impacted by light, noise, attention, angles, speed, and emotional arousal.

When you heard the court say that the officer engaged in excessive force, you may have experienced cognitive dissonance, until you remembered that what the court was actually saying was based on the plaintiff’s view of the case. Fortunately, the court said nothing that should have changed any of your hard earned, specialized, reasonable police insights.

In the real world, away from the summary judgment rules, officers are still expected to assess threats from the perspective of reasonable officers. They are not expected to interpret the world in a light most favorable to future plaintiffs. Bottom line: Officers are not expected to be perfect. They are expected to be reasonable.

And, if they have been doing that, the result of the Wilson case changes nothing.

References

[1] Wilson v. Prince George’s County, Maryland, 893 F.3d 213 (2018)

[2] For an explanation and analysis of the Tueller drill, see The 21-Foot Principle Clarified.

Von Kliem

Von Kliem is a senior policy attorney for Lexipol, co-owner of Von Kliem Consulting, LLC, and editor-in-chief for Force Science News. With nearly 30 years in the criminal justice field, Von has held positions including patrol officer and supervisor, gang and drug investigator, senior use of force instructor and jailer. His legal positions included chief prosecutor, special victim’s counsel, police legal advisor, senior policy attorney, military magistrate and special assistant U.S. attorney. Von is a Force Science Advanced Specialist and graduate of the FLETC Police Legal Advisors Training Program. He holds a bachelor’s in Crime and Delinquency Studies, a master’s in Criminal Justice Administration, a law degree (J.D.), and a master’s in law post-graduate degree (LL.M.). As an Army Judge Advocate (Retired), Von was recognized as police practices, investigations and use of force legal expert; he supported some of the Pentagon’s top attorneys and drafted DoD and Army use-of-force policy.

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