©2010 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (llrmi.com). Two of the more significant issues when dealing with law enforcement’s use of deadly force are first, how will the court analyze the totality of circumstances, and second, how does the mental state of the person law enforcement is dealing with impact the use of force decision?
In Graham v. Connor [i] the United States Supreme Court held: “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.” In Tennessee v. Garner, the Court held that all Fourth Amendment seizures are judged by a “totality of circumstances.” [ii] Putting these two standards together it becomes clear that a court must review an officer’s use of force by the Totality of circumstances from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight.
The issue which arises among the courts is exactly what factors are included in the “totality of circumstances.” Some courts looked to the moment in time that the seizure was made, [iii] while others allow the events leading up to the need to use deadly force as part of the analysis. [iv] Simply stated, some of the United States Courts of Appeals do not ask how the officer arrived at the moment in time, but simply ask, was the officer or someone else in danger of serious bodily harm or death at the time the force was used? Other courts look at the officer’s pre-force conduct to determine if the officer’s tactics or actions in some way created or, in some way caused, the need to use deadly force. Some of the courts have applied different variations of this analysis. [v] Due to this split among the Circuits as to how force will be analyzed, an allegation that an officer’s tactical approach to a given use of force circumstance may impact the ultimate use of force in some parts of the country, but not others. In some parts of the country courts consider only the last frame, in a series of snapshots of the particular event while others consider every snapshot leading up to the last frame as part of the equation. In the latter type of analysis, the question is often asked, did the officer place him or herself in the position of peril through poor tactics, thus creating the need to use deadly force?
This pre-shooting conduct/tactic issue often arises in cases where officers are dealing with emotionally disturbed, suicidal, or mentally impaired persons. The manner in which this issue arises usually surrounds a common set of facts. An emotionally disturbed person (EDP) is threatening suicide with a weapon. Officers respond to the scene and end up using deadly force when the subject uses the weapon to threaten the officers. The pre-shooting conduct comes into question when plaintiff’s expert calls into question the approach and tactics of the officers which led up to the need to use deadly force. One can expect that the plaintiff’s expert will assert that officer’s should have slowed the situation down; should have backed off; should have sought the assistance of mental health professionals; should have applied crisis intervention/Memphis model tactics; should have used de-escalation techniques; and should have used other less-lethal force tactics to bring the situation under control. If the particular jurisdiction’s United States Court of Appeals, is one which opens the totality of circumstances to include pre-shooting conduct, these factors may relevant in determining whether the officer’s ultimate use of deadly force was reasonable, even if, at the moment in time the force was used, the officer or someone else was clearly in danger of death or serious bodily harm. If the case arises in a jurisdiction where the United States Court of Appeals looks only to the moment in time the force was used, these pre-shooting factors may be irrelevant.
A recent case decided by the United States District Court for the District of South Dakota, Southern Division, shows the interplay between the issue of pre-shooting conduct and dealing with the suicidal EDP. [vi]
The Ogle case involved an emotionally disturbed man, Anthony LaRocco, who was threatening suicide. LaRocco was known to law enforcement, including some of the officers involved in the event leading to the lawsuit, as the result of prior occasions involving emotional disturbance episodes, at least one of which included a threat to commit suicide.
The court outlined some of the facts as follows:
“On October 20, 2007, at 7:26 p.m., a telephone operator called 911 stating that she had received a call from a gentleman stating that he was bi-polar, manic depressive, that he had two small children and told the operator not to send the police. The telephone operator also informed 911 that the caller stated he had a gun and had been drinking. At 7:30 p.m., a counselor at the Missouri Shores crisis line called 911 to relay a call that she received from a gentleman who said that he was bi-polar, manic depressive, and had been drinking. The counselor said the caller stated that he had two small children and that if the counselor sent law enforcement to his house, “people are going to die.” The counselor informed the 911 operator that she thought she had heard shots fired during the call. At 7:34 p.m. on October 20, 2007, LaRocco called 911 and stated that he had a 9 mm gun in his pocket and that he would shoot himself in the head. LaRocco stated during this call that if he saw headlights coming he would pull the gun out and pull the trigger. He stated that he was very dangerous and that he would blow up fuel pods on the James Ogle farm if he saw headlights. LaRocco called 911 again at 7:37 p.m. that evening stating that he had two small children who were in Jim Ogle’s trailer and that they would be alone in the trailer. He told the officers not the hurt the children and told the 911 operator that they should call their mother at Stables bar to come watch them. LaRocco stated that he was the one who had been on top of the bar recently and that officers had previously been to his house. He said that he would leave the trailer and would put a gun to the officers and that they would be able to shoot him with no problem. LaRocco stated that he was tired of the suffering that Jim Ogle and others in his family had put him through and that Jim Ogle was the one who was going to pay for all of this. LaRocco told the operator that he could not “handle it anymore” and just wanted someone to help him.”
It was noted that prior to engaging LaRocco, officers had received information from Mr. LaRocco’s fiancée that the gun possessed by LaRocco was actually a BB gun. It was also known that the children were no longer with Mr. LaRocco by the time he was engaged by the officers.
During the investigation of this event, as the officer’s began to stage at a local airport, a pickup truck was observed fleeing the area of the airport. Officer’s began to pursue this truck which was being operated by LaRocco. LaRocco fled from the truck following the vehicle pursuit and fled into a field. He was illuminated by maneuvering law enforcement vehicles as he moved through the field with the gun in hand. As a result of LaRocco pointing the gun at officers, deadly force was used and a lawsuit was brought. There is no question, that at the time the force was used, a reasonable officer would believe that he or she was in danger of serious bodily harm or death. The question raised by plaintiff’s expert was whether the officer’s actions leading up to the moment deadly force was used were proper. The court, in its analysis quoted the testimony of plaintiff’s expert:
“Plaintiff cites the deposition and report of her retained expert, Kevin Johnson, who opines that Sheldon and Lantz did not have a reasonable belief that they and others were in danger of physical harm. In his deposition Mr. Johnson based his conclusion on the following circumstances:
QUESTION: In view of those facts, it’s your opinion that Trooper Lantz did not have a reasonable belief that he and the others near him were in danger of physical harm?
ANSWER: I would say no.
QUESTION: And why not?
ANSWER: I would say the totality of circumstance to me is at that very moment they all had cover. The lights, meaning headlights, spotlights, and it was 9 — I’m not sure exactly when the shot was fired. Somewhere around 9:20, somewhere in that area. Anthony obviously was suicidal, very stressed. Found out that he had alcohol in his system.
QUESTION: Later they found out.
ANSWER: Right. But he had alcohol in his system. He was very nervous, stressed with the officers yelling at him and so forth. A mental person like that, it’s going to stress them out even more. They were roughly 25, 26, 27 yards away, and with the lights shining in his eyes at that time of night, I’m guessing he didn’t see a whole lot, other than a lot of conversation going on at him. Besides that immediate right there, what I just stated, they had the SWAT team two minutes away when the shot was fired.
QUESTION: I want to keep my question focused right at the time the shot was fired.
ANSWER: That’s what I will say. With all those things I just stated, one step to the left for either Officer Lantz or whomever, the cover was there, they had everything they needed. They also could have backed off that situation. He did not fire a shot up to that point. They were out there 13 or 14 minutes. This guy did not fire a shot at any of that time. No shots were fired up to that time. They very easily could have backed of from the situation, because up to that point it was nothing but a misdemeanor out there. No felony had been committed until they got to that field. To me, the circumstances did not allow that kind of shot to be made.
QUESTION: Based on your reading of the materials you reviewed, are you telling me that it would have been impossible for Mr. LaRocco to fire a handgun and hit one of these officers under those circumstances had the handgun been real?
ANSWER: I suppose he could have fired the weapon at anytime. But if they would have gave him the distance that I feel they should have gave, along with all those other circumstances that I gave, I don’t feel there was any cause for deadly force. I feel excessive force, deadly force was used.
QUESTION: I understand you are looking at it under what you believe is the totality of the circumstances. I want to limit my question to the circumstances, the conditions that existed at the time the shot was fired.
ANSWER: I’m still going to say no.
QUESTION: Why not?
ANSWER: I just explained them. That would be my answer.
QUESTION: Even though you admit that the officers had a right to believe that gun was a genuine gun.
ANSWER: They had the right to believe it was a genuine gun. That’s correct.
QUESTION: They were at least exposed or partially exposed at the time Mr. LaRocco pointed that gun at them using two hands?
ANSWER: Whether they were exposed or not, I’m going by the report. They had cover of their vehicles. They had cover of darkness. I’m going by their reports.
QUESTION: Whatever happened, whatever the lighting conditions were, it was light enough so that when Mr. LaRocco pointed that gun just prior to the time he was shot, he pointed it right at people. Didn’t he?
ANSWER:I don’t think he knew who he was pointing it at: I think he was just pointing at that direction, because that’s where the lights were and that’s where the voices were at. I don’t honestly believe he could see anybody out there.
QUESTION: Why do you say that?
ANSWER: Because I know what happens at night when you shine lights in an individual’s eyes. That’s why as officers, when you pull somebody over at night, you put your lights and your spotlights in the mirrors and rear-view mirrors so the subject or person cannot see how you approach a vehicle.
QUESTION: So is it your opinion that a reasonable officer in the position of Sheldon and Lantz should have assumed that even though the gun was pointing directly at them, that really the guy pointing the gun didn’t know they were there?
ANSWER: I’m sure he knew they were there. He could hear their voices. I can’t say he knew he was pointing it at them. I would not say that.
QUESTION: That’s poorly phrased. Should a reasonable officer in the position of Sheldon and Lantz have believed that Mr. LaRocco did not know he was pointing the gun directly at them at the time of the shot?
ANSWER: That Officer Lantz and Sheldon, that they could see he was pointing the gun at them?
QUESTION: That’s what they testified to. Didn’t they?
ANSWER: That’s what they said in their report. I can’t dispute that. That’s what they said.
QUESTION: My question is would reasonable officers in their position seeing Mr. LaRocco pointing a gun directly at them not have a valid reason to believe Mr. LaRocco was, in fact, pointing the gun at them with the intent to shoot at them?
ANSWER: I would say no. I don’t think they knew what he was going to do. He was out there for 13 minutes pointing the gun in different directions. Many of the reports said that he was pointing the weapons toward them. What he wanted to do at that moment, I have no idea.
QUESTION: I don’t know what Mr. LaRocco wanted to do. I’m just asking what a reasonable officer seeing the gun pointed directly at them had reason to believe that guy pointing the gun may shoot me.
ANSWER: They probably did think that.
Mr. Johnson also stated that the officers should have used one of the several less deadly alternatives he believed were available to the officers at the time rather than using deadly force.”
Thus, the plaintiff was attacking the pre-shooting conduct of the officers as it was acknowledged by their expert that a reasonable officer with gun pointed at him or her would believe that they were in danger of serious bodily harm or death.
The federal district court, applying the analysis adopted by the United States Court of Appeals for the Eighth Circuit, dismissed the lawsuit finding on behalf of the officers. The trial court, citing the caselaw for their Circuit asserted:
Contrary to Starks and the other cases cited by Plaintiff, the Eighth Circuit has stated that ‘[t]he Fourth Amendmentprohibits unreasonable seizures, not unreasonable or ill-advised conduct in general. Consequently, we scrutinize only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment.” Thus, whether the officers could have used better or other tactics, is not the issue, the issue is whether the officers were in danger of serious bodily harm or death at the moment of the shooting itself.
The court outlined the rationale behind this decision as follows:
In examining the facts known to Lantz at the moment of the shooting, as the Court is obligated to do, the Court concludes that Lantz’s belief that LaRocco posed a serious threat to his physical safety and to the physical safety of officers Duncan and Sheldon who were also in the line of fire from LaRocco’s gun was not objectively unreasonable. Right before LaRocco was shot, officers reported that LaRocco appeared that he was going to comply with officers’ orders to drop his weapon because he had lowered his gun down by his right side. Instead of dropping his gun, however, LaRocco assumed for the first time Lantz had been in the field, a two-handed grip on his gun and fell to his knees or into a deep crouch, pointing the gun directly at officers Lantz, Sheldon, and Duncan. Although officers Sheldon and Duncan were at least partially behind the cover of their vehicles, Lantz was fully exposed as he was providing Sheldon lethal cover from a short distance behind and to Sheldon’s right as Sheldon looked for an opportunity to release his canine. At the time LaRocco assumed this position, he was approximately 78 feet away from LaRocco. Plaintiff’s expert, Kevin Johnson, stated that officers were correct in assuming LaRocco’s gun was a pistol given their inability to confirm that it was a BB gun and that it was certainly possible for LaRocco to have inflicted serious bodily harm upon one of the officers from that distance had the handgun been a real pistol.
The fact that Lantz had been informed that LaRocco was intending to commit suicide by cop, that LaRocco had exhibited suicidal behavior in the field, and had waved and pointed his gun in the direction of officers numerous times throughout the encounter without firing a shot does not render unreasonable Lantz’s belief that LaRocco posed a serious threat to his physical safety at the time he fired his weapon. The Court is simply unwilling to put officers in a situation whereby they cannot defend themselves from a threat of deadly force if it appears that a suspect is mentally ill and suicidal.
In dealing with the plaintiff’s argument that the officers should have attempted some lesser use of force prior to deadly force, the court stated:
“The fact that there exist questions of fact as to whether other less obtrusive alternatives, such as utilizing Sheldon’s canine to subdue LaRocco, were available to Lantz does not alter this Court’s conclusion that Lantz’s decision at that moment to use deadly force was not objectively unreasonable. Although the Eighth Circuit in Cole acknowledged that courses of action other than the use of deadly force may have conceivably been available to the officer in that case, the court stated that “[t]he Constitution, however, requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision.” Cole, 993 F.2d at 1334. “It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard.” Gardner, 82 F.3d at 251. Even assuming that Sheldon had an opportunity to release his canine, Lantz was not required to utilized this less lethal force because his belief that LaRocco posed a serious and immediate threat to his physical safety was not unreasonable.”
Thus, the analysis in jurisdictions covered by the United States Court of Appeals for the 8th Circuit (North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, Arkansas), pre-shooting conduct and tactics may not be relevant to the ultimate issue of whether use of deadly force was reasonable and there is no lesser-alternative requirement with respect to use of force. The question is whether the particular force used was reasonable under the circumstances.
It is noted that other United States Courts of Appeals apply a different analysis for what constitutes the totality of circumstances and may take pre-shooting conduct/tactics by an officer into account when deciding if a particular use of force was reasonable.
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[i] Graham v. Connor, 490 U.S. 386 (1989).
[ii] Tennessee v. Garner, 471 U.S. 1 (1985).
[iii] Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (“we scrutinize only the seizure itself, not the events leading to the seizure”)
[iv] See e.g. St. Hilaire v. City of Laconia, 71 F.3d 20 (1995).
[v] See e.g. Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002); See DeBoer v. City of Olympia, 183 Fed. Appx. 671 (9th Cir. 2006).
[vi] Ogle v. Lantz, 2010 U.S. Dist. LEXIS 47944 (S.D. Fed. Dist. Southern Div. 2010).