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.
Trainers and some law enforcement practice experts often refer to this as officer-created jeopardy. There are many lawsuits where a police practice expert, on behalf of the plaintiff, will concede that at the moment the officer shot, the officer faced an immediate threat of serious bodily harm or death, but will then opine that the officer’s pre-shooting conduct or tactics are what placed the officer in jeopardy of the immediate threat.
The United States Supreme Court precedent over the last six years, has seemingly rejected the officer-created jeopardy argument. In San Francisco County v. Sheehan, the Court asserted: “Indeed, even if Reynolds and Holder misjudged the situation, Sheehan cannot “establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.” Id., at 1190. Courts must not judge officers with “the 20/20 vision of hindsight.’” Ibid. (quoting Graham, 490 U. S., at 396).”
The Court went on to state: Even if an officer acts contrary to her training, however (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.” (emphasis added).
In Los Angeles County v. Mendez, the United States Supreme Court considered whether the United States Court of Appeals for the 9th Circuit’s deadly force analysis was consistent with Graham v. Connor. As noted under the analysis used by the United States Court of Appeals for the 9th Circuit, a use of deadly force by an officer could be consistent with Graham yet still be unreasonable and a constitutional violation if the officer’s acts leading up to the shooting were unconstitutional.
The Court concluded that the 9th Circuit’s analysis was improper noting: “The basic problem with the provocation rule is that it fails to stop there. Instead, the rule provides a novel and unsupported path to liability in cases in which the use of force was reasonable. Specifically, it instructs courts to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force. That distinct violation, rather than the forceful seizure itself, may then serve as the foundation of the plaintiff’s excessive force claim.”
The Court noted that another problem lies in the two-prong test used by the 9th Circuit for the provocation theory. First, there must be a separate constitutional violation that creates the situation leading to the force, then the rule requires that the officer committing the violation to have acted recklessly or intentionally. The Court noted that this second prong requires a court to look at the particular officer’s subjective intent, which is contrary to the objective reasonableness standard that has always applied to force.
Based on the foregoing precedent, it is suggested that an officer’s tactical errors or pre-shooting conduct should not be considered if the officer faced an immediate threat of serious bodily harm or death at the moment in time that deadly force was used.
The United States Supreme Court is now 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.
The United States Court of Appeals for the 10th Circuit outlined the facts in Bond as follows:
On August 12, 2016, Dominic’s ex-wife, Joy, called 911. She requested police assistance: “Hey, can I get somebody to come over to my house, my ex-husband is in the garage, he will not leave, he’s drunk and [**2] it’s going to get ugly real quick.” Ex. 1 at 00:01-00:13.4 The dispatcher responded, “If we send somebody out there, he will go to jail for being intoxicated in public, if that’s what you want to happen.” Ex. 1 at 00:22-00:28. Joy replied, “Yes, that is.” Ex. 1 at 00:29-00:30. The dispatcher then asked whether Dominic lived at the residence, to which Joy responded, “No, he doesn’t live here. He’s a registered sex offender and lives in Park Hill. He’s my ex-husband. He’s still got tools in the garage. He doesn’t live here.” Ex. 1 at 00:30-00:45.
Officer Josh Girdner responded to Joy’s 911 call, and Officer Chase Reed responded as Officer Girdner’s backing officer. Officer Brandon Vick, the patrol shift supervisor, also responded to the call. It is disputed exactly how much information the officers received from the dispatcher, but it is undisputed they knew Dominic was Joy’s ex-husband, he was intoxicated, and Joy wanted him gone. See, e.g., App., Vol. II at 320 (Officer Girdner knew “that [Joy’s] ex-husband was at her house and he was intoxicated and she feared . . . [what might] happen”).
Officer Girdner and Officer Reed arrived at about the same time and met Joy in the front yard. Officer Girdner spoke [**3] with Joy, who told him why she called 911. Joy then showed Officers Girdner and Reed to the side entrance of the garage, where they met Dominic. Officer Vick arrived while [*813] Officers Girdner and Reed were talking to Dominic at the side door to the garage.
Officer Girdner believes he explained to Dominic why they were there. Dominic expressed concern that the officers intended to take him to jail, and Officer Girdner told him they were not going to do that. Instead, they were “going to try to get him a ride out of there.” App., Vol. II at 325; see also App., Vol. II at 203, 351. Dominic informed the officers that he had a ride coming. During the conversation, Officer Girdner perceived Dominic as “fidgety.” App., Vol. I at 198; see also App., Vol. II at 325 (“He kept fidgeting with his hands.”); Ex. 7 at 00:00-00:13. Based on that perception, Officer Girdner asked to pat down Dominic. Dominic refused.
Officer Reed’s body camera began capturing video at some point during this exchange. It is difficult to tell if the video starts before, during, or after Officer Girdner’s request to pat down Dominic because there is no audio for the first thirty seconds of video.
The video appears to show Dominic talking to Officer Girdner and gesturing with his hands. Dominic also appears [**4] to be fidgeting with something in his hands. Officer Girdner then begins gesturing with his hands and takes a step toward the doorway, causing Dominic to take a step back. Officer Girdner continues gesturing and walking toward Dominic, through the doorway and into the garage. Dominic turns and walks to the back of the garage, as Officer Girdner continues to point at and follow him. Officers Reed and Vick then follow Dominic and Officer Girdner into the garage. The officers claim that before the sound starts on the video, Officer Girdner ordered Dominic to stop.
When Dominic reaches the back of the garage, he turns around briefly to face the officers. Then he turns to the workbench on the back wall of the garage and grabs a hammer hanging above it. As Dominic faces the officers with the hammer, the officers back up and draw their guns. Dominic initially grasps the hammer with both hands, as if preparing to swing a baseball bat. But then he drops his left hand down, holding it out in front of him as if to signal the officers to stop or to create distance between himself and them. Dominic holds the hammer in his right hand just above his head.
At this point, Officer Reed is standing in [**5] the middle of the three officers with Officer Girdner to Officer Reed’s left, and [*814] Officer Vick to Officer Reed’s right. The audio starts about this time and records the officers yelling at Dominic to drop the hammer. The officers repeatedly shout at Dominic, telling him to drop it, and he repeatedly refuses, saying “No.” Ex. 7 at 00:30-00:40. During this exchange Dominic slowly moves to the officers’ left, coming from behind furniture, so that the officers are the only obstruction between Dominic and the exit. Officer Girdner estimated there were about eight to ten feet between himself and Dominic.
At this point, Officer Reed states he has decided to “go less lethal,” and he holsters his gun and pulls out his taser. The officers continue to order Dominic to drop the hammer, and Dominic responds, “I have done nothing wrong here, man. I’m in my house. I’m doing nothing wrong.” Ex. 7 at 00:45-00:49. Officer Reed then takes a few steps toward Dominic, and Dominic says, “I see your taser.” Ex. 7 at 00:50-00:52. An officer then yells, “Drop it now,” and Dominic again says, “No.” Ex. 7 at 00:50-00:52. During this exchange, Dominic appears to pull the hammer back behind his head. But he is [**6] still talking to the officers, relatively calmly, with one hand outstretched. In response to Dominic’s movement with the hammer, Officers Girdner and Vick fire multiple shots. Dominic doubles over into a squatting position as the bullets hit him. Still holding the hammer, he groans and raises the hammer. Officer Girdner fires again. The officers yell one last time for Dominic to drop the hammer, and he does. Next, the officers order Dominic to get on the ground and he rocks back, falling to the ground. Emergency Medical Services later transported Dominic to a hospital where he was pronounced dead. (Footnotes omitted).
Applying the analysis adopted by 10th Circuit in prior cases, the court asserted:
“The reasonableness of [officers’] actions depends both on whether the officers were in danger at the precise moment that they used force and on whether [their] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force. We have held that even when an officer uses deadly force in response to a clear threat of such force being employed against him, the Graham inquiry does not end there. Allen v. Muskogee, 119 F.3d 837, 839, 841 (10th Cir. 1997) (holding a rational jury could conclude officers’ reckless conduct created a lethal situation and that would constitute a violation of a decedent’s Fourth Amendment rights). Instead, we consider whether the Graham factors were met under the totality of the circumstances, including whether the officers approached the situation in a manner they knew or should [**11] have known would result in escalation of the danger. See id. at 841.
The 10th Circuit concluded:
Viewing the facts in the light most favorable to the Estate, including the actions of the police officers that may have recklessly escalated the situation, a reasonable jury could find that Officers Girdner and Vick violated Dominic’s Fourth Amendment right to be free from unreasonable seizure.
The defendants have sought a review by the United States Supreme Court and the Court has called for the record from the 10th Circuit as well as the Federal District Court that initially had the case.
The two questions presented are:
(1) 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.
It is noted that the National Sheriff’s Association, the National Police Association, and the National FOP sought permission to file Amicus briefs should the case be accepted. The National FOP’s motion was not accepted. The lower courts records were distributed for conference amongst the Justices set for September 27th.
If this case gets decided by the Supreme Court, and specifically with respect to Question 1, it will be one of the most significant cases on use of force in many years.
 City and County of San Francisco et al v. Sheehan, 575 U.S. 600 (2015).
 County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017).
 Bond v. City of Tahlequah, 981 F.3d 808 (10th Cir. 2020).