Over the several years, there has been ongoing disagreement amongst the Federal Circuits with respect to the analysis applied in deadly force cases.  Most of the Federal Circuits adopt a position that the officer’s use of deadly force be examined at the Moment In Time the force was used to determine the objective reasonableness of the force, without considering the actions of the officer leading up to the use of deadly force.

The United States Court of Appeals for the 10th Circuit for more than a decade has held that an officer’s immediately connected conduct should also be considered and not just the moment in time.  Similarly, the United States Court of Appeals for the 1st Circuit takes into account the officer’s actions leading up to the moment of the shooting may make a use of deadly force, where the officer faced an immediate threat of serious bodily harm or death, unconstitutional if the officer’s actions/tactics leading up to the shooting played a role in creating the jeopardy.

The United States Supreme Court was being asked to consider a case from the United States Court of Appeal for the 10th Circuit, Bond v. City of Tahlequah in which officers were denied summary judgment and qualified immunity based on their pre-shooting conduct.[1]

The Court issued a Per Curiam decision granting the officers qualified immunity but did not answer the Constitutional or Merits question.

The Questions Presented were:

(1) Merits: Whether use of force that is reasonable at the moment it is employed can nonetheless violate the Fourth Amendment if the officers recklessly or deliberately created the need to use force; and

(2)Whether it was clearly established for qualified immunity purposes that advancing toward an intoxicated individual wielding a deadly weapon inside a garage was a “reckless” act that would render unconstitutional any subsequent use of lethal force in response to a threat to officer safety.

The United States Court outlined the facts in Bond as follows:

On August 12, 2016, Dominic Rollice’s ex-wife, Joy, called 911. Rollice was in her garage, she explained, and he was intoxicated and would not leave. Joy requested police assistance; otherwise, “it’s going to get ugly real quick.” 981 F. 3d 808, 812 (CA10 2020). The dispatcher asked whether Rollice lived at the residence. Joy said he did not but explained that he kept tools in her garage.

Officers Josh Girdner, Chase Reed, and Brandon Vick responded to the call. All three knew that Rollice was Joy’s ex-husband, was intoxicated, and would not leave her home.

Joy met the officers out front and led them to the side entrance of the garage. There the officers encountered Rollice and began speaking with him in the doorway. Rollice expressed concern that the officers intended to take him to jail; Officer Girdner told him that they were simply trying to get him a ride. Rollice began fidgeting with something in his hands and the officers noticed that he appeared nervous. Officer Girdner asked if he could pat Rollice down for weapons. Rollice refused.

Police body-camera video captured what happened next. As the conversation continued, Officer Girdner gestured with his hands and took one step toward the doorway, causing Rollice to take one step back. Rollice, still conversing with the officers, turned around and walked toward the back of the garage where his tools were hanging over a workbench. Officer Girdner followed the others close behind. No officer was within six feet of Rollice. The video is silent, but the officers stated that they ordered Rollice to stop. Rollice kept walking. He then grabbed a hammer from the back wall over the workbench and turned around to face the officers. Rollice grasped the handle of the hammer with both hands, as if preparing to swing a baseball bat, and pulled it up to shoulder level. The officers backed up, drawing their guns. At this point, the video is no longer silent, and the officers can be heard yelling at Rollice to drop the hammer.

He did not. Instead, Rollice took a few steps to his right, coming out from behind a piece of furniture so that he had an unobstructed path to Officer Girdner. He then raised the hammer higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers. In response, Officers Girdner and Vick fired their weapons, killing Rollice.

At the outset, it must be noted that the Court did not decide whether this use of deadly force was Constitutional or whether or not the analysis undertaken by the United States Court of Appeals for the 10th Circuit is proper.  Instead, the Court looked at whether the law was clearly established with respect to the deadly force used on Rollice.

The Supreme Court reviewed 10th Circuit precedent relied upon by the 10th Circuit in finding that the law was clearly established at the time the officers used deadly force on Rollice.

Two of the cases cited were Allen and Sevier.

In Allen v. City of Muskogee,[2] the United States Court of Appeal for the 10th Circuit applied the “immediately connected” conduct of police officers to a deadly force case involving a suicidal man.  Terry Allen left his home following a fight with his wife and children.  Before doing so, he took several guns and ammunition.  The family dispute was reported to the police and a teletype was sent out advising officers of the description of Mr. Allen’s vehicle and the fact that he was armed.  It was also learned by the police that Mr. Allen had an outstanding arrest warrant for impersonating a police officer.

Sometime later police received a call from Mr. Allen’s sister reporting that Mr. Allen was outside her home with a gun and threatening suicide.  Officers responded to the scene and found Mr. Allen seated in his car with one foot outside of the vehicle and a gun in his right hand which was rested on the center console.  After moving bystanders back the officers moved in and tried to grab the gun from Mr. Allen.  As an officer approached from the passenger side, Mr. Allen pointed the gun at him, causing the officer to retreat to a position of cover behind the vehicle.  Mr. Allen then swung the gun toward the officers on the driver’s side of the vehicle which precipitated the officers’ use of deadly force causing the death of Mr. Allen.  The entire sequence of events from the time of arrival of the first officers until the shooting was ninety-seconds.

The plaintiff’s theory of liability was that the generally accepted police practice with respect to suicidal individuals who do not have hostages is to isolate and negotiate.  Thus, rushing the vehicle violated these generally accepted police practices and precipitated the need to use deadly force.

In rejecting the officers’ bid for summary judgment the court noted that the “excessive force inquiry includes not only the officers’ actions at the moment that the threat was presented, but also may include the actions in the moments leading up to the suspect’s threat of force…as we stated in Sevier[3]‘the reasonableness of [the police officer’s] actions depends both on whether the officers were in danger at the precise moment that they used force and on whether the [police officer’s] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.’  We will thus, consider an officer’s conduct prior to the suspect’s threat of force if the conduct is ‘immediately connected’ to the suspect’s threat of force.” The court concluded that a “reasonable jury could conclude on the basis of some of the testimony presented that the officers’ actions were reckless and precipitated the need to use deadly force.”

It is noted that the 10th Circuit position of reviewing pre-shooting tactics, is a minority position among the split between the Circuits, where most circuits look at the moment in time the shooting occurred.

In its qualified immunity analysis, the Court pointed out:

We have repeatedly told courts not to define clearly established law at too high a level of generality. It is not enough that a rule be suggested by then-existing precedent; the “rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ Such specificity is “especially important in the Fourth Amendment context,” where it is “sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”  (Citations Omitted)

The Tenth Circuit contravened those settled principles here. Not one of the decisions relied upon by the Court of Appeals—Estate of Ceballos v. Husk, 919 F. 3d 1204 (CA10 2019), Hastings v. Barnes, 252 Fed. Appx. 197 (CA10 2007), Allen, 119 F. 3d 837, and Sevier v. Lawrence, 60 F. 3d 695 (CA10 1995)—comes close to establishing that the officers’ conduct was unlawful.

The Court then made a point of distinguishing what occurred with Rollice in the Bond case, from what happened in the Allen and Sevier cases.  Noting that the Tenth Circuit relied most heavily on Allen, the Court wrote:

The Court relied most heavily on Allen. But the facts of Allen are dramatically different from the facts here. The officers in Allen responded to a potential suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to physically wrest a gun from his hands. 119 F. 3d, at 841. Officers Girdner and Vick, by contrast, engaged in a conversation with Rollice, followed him into a garage at a distance of 6 to 10 feet, and did not yell until after he picked up a hammer. We cannot conclude that Allen “clearly established” that their conduct was reckless or that their ultimate use of force was unlawful.

The Court granted the officers qualified immunity thereby dismissing the case.  This leaves open the Constitutional question with respect to the proper analysis in use of force cases, specifically, can pre-shooting conduct such as bad tactics make a shooting bad if, at the moment of the shooting, the officer is in danger of serious bodily harm or death.


[1] Bond v. City of Tahlequah, 981 F.3d 808 (10th Cir. 2020).

[2] Allen v. City of Muskogee, 119 F.3d 837 (10th Cir. 1997) cert. denied  Smith v. Allen, 522 U.S. 1148 (1998).

[3] Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995).

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