On September 24, 2021, the Sixth Circuit Court of Appeals of decided Anderson v. City of Fulton[i], which serves as an excellent review of constitutional law as it pertains to deadly force. The relevant facts of Anderson, taken directly from the case, are as follows:
On January 16, 2017, McClure walked up and down a road in Fulton wielding his homemade pike, striking cars as he walked by, and throwing the pike like a spear. Several concerned citizens called 911. [Authors note: The homemade pike was described as a three-and-a-half-foot-long steel pole with a pocketknife attached to the end.[ii]]
The first officer to arrive on the scene was Fulton Police Chief Terry Powell. Powell verbally engaged McClure from his patrol car. As Powell followed McClure, McClure ran toward the rear of Powell’s car and struck the rear window, shattering it. A few minutes later, McClure shattered Powell’s driver’s side windshield. Powell twice radioed for backup because McClure had struck his vehicle.
Buckingham was the second officer to arrive on the scene. When he was enroute, he heard Powell’s calls for backup. When Buckingham arrived on the scene, he witnessed McClure attack a passing civilian vehicle, at which point Buckingham unsuccessfully attempted to de-escalate the situation. Buckingham eventually exited his car with his gun drawn. As Buckingham approached the rear driver’s side corner of his patrol car, he came face to face with McClure, who charged to within six feet of Buckingham and swung his pike in Buckingham’s vicinity, hitting the rear windshield of his patrol car. Buckingham shot McClure as McClure swung the pike, hitting McClure in the abdomen and causing him to drop the pike.
Following the first shot, Buckingham approached McClure and three times ordered McClure to “get down,” but McClure attempted to get back up. Buckingham’s bodycam shows that McClure was within reaching distance of the pike, which at that point, did not have the knife attached to the end of it. As McClure attempted to get up, Buckingham fired a second shot at point-blank range into McClure’s vital organs. The video shows that seconds elapsed between the first and second shots. During that time, McClure never surrendered or relented. After the second shot, Buckingham guided McClure to the ground and handcuffed him. McClure ultimately died of his wounds.[iii]
Anderson, the administrator of McClure’s estate, filed suit and alleged that the officer used excessive force in violation of the Fourth Amendment. The district court, relying primarily on body camera and dash camera video, granted summary judgment in favor of the officer and dismissed the suit, holding the shooting was reasonable. The plaintiff appealed the grant of summary judgment to the Sixth Circuit Court of Appeals.
On appeal, the Sixth Circuit set out to determine if the officer’s use of deadly force against McClure was reasonable under the Fourth Amendment. The court of appeals first examined the law pertaining to the use of force and deadly force and stated
“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.” Id. at 396. Relevant factors to consider in evaluating the reasonableness of force are [1] the “severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Latits v. Phillips, 878 F.3d 541, 546 (6th Cir. 2017) [*5] (quoting Graham, 490 U.S. at 396). “[T]he threat factor is ‘a minimum requirement for the use of deadly force,’ meaning deadly force ‘may be used only if the officer has probable cause to believe that the suspect poses a threat of severe physical harm.'” Mullins, 805 F.3d at 766 (quoting Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005)) (emphasis omitted). But “[t]hese factors are not an exhaustive list, and the ultimate inquiry is whether the seizure was reasonable under the ‘totality of the circumstances.'” Slusher, 540 F.3d at 455 (quoting Ciminillo, 434 F.3d at 467).[iv]
Thus, to evaluate a use of force, the court will consider the three factors from Graham v. Connor, which are as follows:
- The severity of the crime at issue;
- Whether the suspect poses an immediate threat to the safety of the officers or others; and
- Whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.
Additionally, the court of appeals noted that the threat level that must be present to make deadly force reasonable under the Fourth Amendment is that the suspect must pose “a threat of severe physical harm.”
The court also noted that this incident involved two separate uses of deadly force, therefore, they would assess the reasonableness of each use of force separately. At this point, it is important to note that the court of appeals also noted that they would view the events of the incident as they were recorded on the officer’s body worn camera, and will rely upon the body camera rather than Anderson’s allegations that were “blatantly contradicted” by the video.
The court then set out to evaluate the first instance of deadly force used by the officer. They noted that the officer made a “split-second decision to shoot McClure” as “McClure, demonstrating erratic and violent behavior, [and] charged [the officer] with his pike.”[v] Charging the officer with a three-and-a-half-foot-long steel pole posed a threat of severe physical harm to the officer. The officer fired one shot at McClure, and the court of appeals held that this use of force was reasonable under the Fourth Amendment.
The court then examined the second shot fired by the officer, which occurred “seconds” after the first shot. While the court does not specify how many seconds passed between the first shot and second shot, the court does state that the after the first shot, the officer gave McClure three verbal commands to McClure to “get down.” Rather then following those commands, McClure attempted to stand up and move to recover the steel pole. The court stated that the body camera video showed that the officer was now within two feet of McClure and McClure was within reaching distance of the steel pole, which no longer had the knife attached. The officer then fired one additional shot at McClure, which ultimately caused his death. The court stated
Nonetheless, the first shot did not abate the threat of serious physical harm. Despite Buckingham’s repeated commands to stay down, McClure got to his knees and moved to recover the steel pole that he had used to smash the windows of the several vehicles. Given the unrefuted evidence that (1) McClure was noncompliant and acting erratically, (2) McClure was within reaching distance of the pole, and (3) Buckingham was within two feet when McClure started to stand up, Buckingham had probable cause to perceive McClure as an imminent threat and did not use unreasonable force when he shot McClure the second time.[vi]
Thus, the court of appeals held that, in light of the totality of the circumstances, both uses of deadly force were reasonable under the Fourth Amendment.
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Citations
[i] No. 21-5001 (6th Cir. Decided September 24, 2021 Unpublished)
[ii] Id. at fn. 1
[iii] Id. at 2-3
[iv] Id. at 4-5 (emphasis added)
[v] Id. at 5
[vi] Id. at 5-6 (emphasis added)
