On January 18, 2022, the Tenth Circuit Court of Appeals decided Coronado v. Olsen[i], which is instructive regarding police use of force at a SWAT call with a barricaded subject. The relevant facts of Coronado are as follows:
On August 3, 2016, Tabeththa Coronado called 911 to report that her husband, Fernando Coronado, was threatening to kill himself and their family. She told the 911 dispatcher that Coronado had been drinking and that he had held a knife to his own throat while threatening to “kill everybody.” Supp. App. at 14. Tabeththa also reported that there was a firearm in the apartment and that Coronado might have a pocketknife with him.
Pursuant to the 911 dispatcher’s instructions, Tabeththa exited the apartment with her son and mother, who also lived in the apartment. By that time, officers from the West Valley City Police Department had arrived at the apartment. Tabeththa relayed to a police officer the same information she had told the 911 dispatcher. She also revealed that her husband had a history of making violent threats towards his family.
Shortly after arriving on scene, officers established contact with Coronado via his cell phone and tried to coax Coronado into leaving his apartment. When Coronado refused, the West Valley City SWAT team was dispatched to assist with the situation. A SWAT team negotiator began talking with Coronado on the phone to convince him to surrender peacefully.
Negotiations ensued for several hours. While speaking with the negotiator, Coronado repeatedly threatened to kill anyone who attempted to restrain him or enter the apartment. He also claimed he had rigged his apartment door to explode and would detonate the explosives if any officers entered his apartment. Coronado said he had a rifle and a knife with him and was willing to commit “suicide by cop.” App., Vol. 3 at 179. During the negotiations, officers also gathered information on Coronado’s criminal history. They discovered he had several prior convictions, including aggravated assault with a weapon.
Coronado’s apartment building has two sets of exterior stairs, one on the north side and another on the south side. The SWAT team formulated a plan to lure Coronado to officers on the south-side stairs who would use a tactical shield for protection. Officers on the north-side stairs would wait on the floor below and then climb up the stairs and approach Coronado from behind. The goal was to prevent Coronado from reentering his apartment and potentially reaching any weapons or explosives.
Coronado eventually agreed to leave his apartment. When Coronado opened his apartment door and walked out, the SWAT team observed that Coronado was barefoot and unclothed from the waist up, wearing only a pair of shorts and a belt. Coronado approached the members of the SWAT team on the south-side stairs and stood a few feet from them. The officers yelled numerous overlapping instructions at Coronado, including to put his “hands up” and “get on the ground.” Officer Kenneth Olsen Body Camera Video 01 at 00:17-00:23 (filed conventionally).
SWAT team members Hill and Olsen then climbed the north-side stairs from the floor below. They noticed that Coronado did not appear to have a weapon, so they slung their rifles and pulled out their tasers. Coronado, who did not notice that Officers Hill and Olsen were approaching him from behind, advanced towards the officers on the south-side stairs, pounded his chest, and yelled, “I f**king created this!” Id. at 00:44-00:46. Coronado then turned around and saw Officers Hill and Olsen with their tasers pointed at him. Coronado took approximately three steps towards the officers and Officer Hill immediately ordered him to get on the ground. Either Officer Hill or Officer Olsen then fired his taser and the other officer deployed his taser immediately after. The tasers immobilized Coronado, who fell headfirst into a door and onto the ground. Officers handcuffed Coronado and arranged for medical treatment. In total, thirty-seven seconds had passed from the moment Coronado exited his apartment to the moment he was tasered.
Following his arrest, Coronado was charged with six misdemeanor crimes related to the incident, all of which were later dropped.[ii]
Coronado subsequently sued SWAT Officer’s Hill and Olsen for excessive force in violation of the Fourth Amendment for tasing him, as well as the City for having a custom, policy or practice that caused the Fourth Amendment violation. The officers filed a motion for qualified immunity and district court denied the officer’s motion, as well as the city’s motion for summary judgment. The officers and the city appealed to the Tenth Circuit Court of Appeals.
The court of appeals first discussed qualified immunity and stated
Reviewing a grant of summary judgment in the qualified immunity context involves a two-part inquiry. Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008) (citing Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007)). “First, the plaintiff must establish the defendant violated a constitutional right.” Id. If no constitutional violation occurred, our inquiry ends. Id. If the plaintiff shows that a constitutional right was violated, “we next ask if the constitutional right was clearly established.” Id. “To be clearly established, either Supreme Court or Tenth Circuit precedent must be on point or the clearly established weight of authority from other courts must agree with plaintiff’s contention.” Id.[iii]
Simply put, a plaintiff must first establish that the officers committed a constitutional violation. If the officers acted reasonably, then the officers are entitled to qualified immunity. If the plaintiff established that the officers violated the constitution, then the plaintiff must also show that the law was clearly established such that a reasonable officer in the same situation would have known that the conduct was unlawful. This is typically shown by court precedent.
The court then set out to determine the first prong of the qualified immunity analysis, particularly whether the officers committed a constitution violation when they tased Coronado. The court noted that excessive force claims are governed by the “objective reasonableness” standard of the Fourth Amendment. To determine in the officers were objectively reasonable, or unreasonable, in their use of force, the court looks to precedent from the Supreme Court. The court stated
The Supreme Court identified the following factors a court should consider when evaluating a claim that police officers used excessive force: (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 he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The court must adopt “the perspective of a reasonable officer on the scene, rather than [assuming] the 20/20 vision of hindsight.” Id. The Graham factors require an assessment that accounts “for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Pauly v. White, 874 F.3d 1197, 1215 (10th Cir. 2017) (quoting Graham, 490 U.S. at 397).
HN5[] Ultimately, “the inquiry is always whether, from the perspective of a reasonable officer on the scene, the totality [*9] of the circumstances justified the use of force.” Larsen, 511 F.3d at 1260. If an officer “reasonably, but mistakenly, believed that a suspect was likely to fight back . . . the officer would be justified in using more force than in fact was needed.” Id. (quoting Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004)).[iv]
The court also discussed some factors they consider in determining the reasonableness of a use of force such as
(1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.”[v]
Use of Force Evaluation:
A. The Severity of the Crime
The court examined the first factor from Graham v. Connor, particularly the severity of the crime(s) that Coronado may have committed. The court noted that Coronado made numerous threats against people and property. He threatened to blow the building up with explosives, said that he had a rifle and a knife, said he was going to commit suicide by cop, and threatened to kill anyone that tried to restrain him or enter his apartment.
Thus, the court of appeals concluded that at the time the officers used force, they “were responding to a volatile situation that easily could have supported serious charges.”[vi]
B. Did Coronado Pose an Immediate Threat to Officers
The court noted that this is the most important factor in a use of force analysis. The court noted the following facts that support the fact that it was reasonable for officers to believe that Coronado posed a threat:
- He refused officers’ verbal commands to put his hands up and get on the ground;
- He threatened to kill police officers if they entered his apartment;
- He said that he had a rifle and knife;
- He said the apartment was rigged with explosives;
- He said he would commit suicide by cop;
- He was disobeying verbal commands and walking toward officers, such that he would be within reaching distance of the officer’s weapons; and
- Officers knew he had a violent criminal history;
The court stated that in light of the above facts, it was reasonable for the officers to believe that Coronado posed a threat to their safety. Further, the court noted that even if Coronado did not intend to hurt the officers, it does not matter, as the standard is what a reasonable officer would believe, rather than the intent of the suspect.
As such, the court concluded that the officers reasonably believed that Coronado posed a threat.
C. Was Coronado actively resisting arrest?
The court noted that Coronado ignored repeated orders to surrender, refused to put his hands up and refused to get on the ground, all while swearing at the police and beating his chest. Then, he turned around and began walking toward Officers Hill and Olsen. The court found this was sufficient for a reasonable officer to believe that Coronado was resisting arrest.
Coronado argued that the officers violated the Fourth Amendment because they recklessly created the need for the use of force. However, court noted that officers “spent hours” attempting to peacefully negotiate his surrender. Only after hours of failed negotiations, did officers decide to lure him out of the apartment so they could arrest him. Then, Officers Hill and Olsen only used force, particularly their tasers, when Coronado refused to comply with commands and was advancing toward them.
Thus, the court concluded that Coronado was resisting arrest.
The court of appeals then held
[A]ll three Graham factors weigh in favor of finding that Officers Hill and Olsen reasonably concluded that Coronado posed a serious threat of harm to themselves and the other officers and did not use excessive force in using their tasers to subdue him.[vii]
Therefore, since the officers did not violate the Fourth Amendment, Coronado failed to satisfy the first prong to defeat qualified immunity; therefore, the court held the officers were entitled to qualified immunity.
Further, since Coronado failed to show an underlying constitutional violation, the claim against the city also failed; thus, the city was entitled to summary judgment.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 20-4118 (10th Cir. Decided January 18, 2022)
[ii] Id. at 2-5
[iii] Id. at 7 (emphasis added)
[iv] Id. at 8-9 (emphasis added)
[v] Id. at 9
[vi] Id. at 10
[vii] Id. at 14
