On January 24, 2022, the Sixth Circuit Court of Appeals decided Kirilova v. Braun[i], which is instructive regarding police use of deadly force under the Fourth Amendment.
In Kirilova, officers were called to a possible burglary. When they arrived, witnesses directed them toward a vacant house and indicated that that is where the burglary suspect was hiding. There was also some question as to whether a burglary occurred or whether it was merely trespassing. As officers approached the vacant house, officers were heard on body camera discussing the fact that, several months prior, they encountered a male who was “squatting” in that house. One officer saw a person in an upstairs window and that person did not respond to the officer’s commands to come outside. The officers announced their presence repeatedly and then made entry to search for possible burglary suspect. The officers searched the first floor and did not locate the suspect. The remaining relevant facts of Kirilova are as follows:
While Officer Braun positioned himself at the bottom of the stairs, Officers Young and Richardson searched the rooms on the first floor with their weapons drawn and flashlights in hand. Officer Young recounted later that she heard movement overhead as she searched. When the first-floor search yielded no results, the officers lined up with guns drawn at the foot of the stairs to continue the search on the next floor.
Officer Braun led the line toward the second floor. As he preceded up the stairs, he shouted, “Police Department!” and, about halfway up the stairs, “Police!” As Officer Braun came closer to the top of the stairs, a scan of the landing between the stair bannisters did not reveal anyone in the second-floor common area. However, as Officer Braun reached the top of the stairs and turned around, the beam of his light revealed Young crouching in a corner about ten feet away. Young got to his feet, holding a metallic object with a handle, which both parties describe as a “metal skewer.” Young moved decisively toward Braun with the skewer pointed at the officer’s body. The officers immediately shouted at Young, who continued to move forward with the skewer. Less than three seconds after the officers saw Young, all three officers fired on him. Young immediately fell to the ground. He died of multiple gunshot wounds several minutes later.[ii]
Kirilova subsequently sued the officers and the city on behalf of Young’s estate and alleged, among other things, that the officers violated Young’s rights under the Fourth Amendment by using excessive force when they shot him. The officers filed a motion for qualified immunity, which the district court granted. The district court also granted summary judgment in favor of the city. Kirilova appealed to the Sixth Circuit Court of Appeals.
In order to overcome qualified immunity, a plaintiff must show (1) that the officer violated a constitutional right, and (2) that the right was clearly established such that any reasonable officer would have known that he was violating the constitution.
The court of appeals then set out to determine if the officer violated Young’s Fourth Amendment rights when they used deadly force, or in other words, whether the use of deadly force was unreasonable under the Fourth Amendment.
The court first noted several legal principles that are relevant to this issue and stated
The Fourth Amendment‘s prohibition against unreasonable seizures protects citizens from excessive force by law enforcement officers and governs our analysis. While officers may use some degree of physical coercion, the Fourth Amendment requires the amount of force to be objectively reasonable under the totality of the circumstances. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
The objective reasonableness inquiry is considered from the perspective of a hypothetical reasonable officer in the defendant’s position and with his knowledge at the time, but without regard to the officer’s subjective intent in taking the actions. Id. at 397. The Supreme Court has emphasized that we cannot deploy “the 20/20 vision of hindsight,” id. at 396, because officers may be placed in tense and evolving situations requiring split-second decisions concerning the amount of force that is necessary, id. at 396-97. Therefore, the reasonableness analysis provides a “built-in measure of deference to the officer’s on-the-spot judgment.” Mullins v. Cyranek, 805 F.3d 760, 766 (6th Cir. 2015) (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002)). . .
. . .Three non-exhaustive factors from Graham guide the analysis of a deadly force claim: “[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.” Goodwin v. City of Painesville, 781 F.3d 314, 321 (6th Cir. 2015) (quoting Graham, 490 U.S. at 396). Ultimately, our focus is on whether “the totality of the circumstances justified a particular sort of search or seizure.” Tennessee v. Garner, 471 U.S. 1, 9, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985).[iii]
The court then examined the facts of the case in light of the legal principles above. The court stated the first factor, the severity of the crime, and third factor, whether the suspect was actively resisting or fleeing, are not relevant in this case. The court reasoned that the crime at issue may have been burglary or trespassing, both property crimes, but there was also some doubt among at least one officer whether a burglary had occurred. Furthermore, there was no evidence that the officers were going to arrest Young; they may have just intended to detain him and further investigate the allegations.
Thus, the focus was on the second factor, particularly, whether Young posed a threat to the officers, and in the case of deadly force whether the officers reasonably believed Young posed a threat of serious bodily injury or death.
The plaintiff argued that the officers decision to search the second floor and their use of deadly force was unreasonable under the Fourth Amendment. They argued that the officer’s choice to confront Young with only handguns at the ready was unreasonable. Further, they argued that the officers violated their department’s policies on barricaded subjects and dealing with persons of diminished capacity. Regarding these arguments, the court stated
We have held, however, that “[w]ithin a few seconds of reasonably perceiving a sufficient danger, officers may use deadly force even if in hindsight the facts show that the persons threatened could have escaped unharmed.” Untalan v. City of Lorain, 430 F.3d 312, 315 (6th Cir. 2005). Though different decisions on the night of February 11, 2017, might have led to a better outcome, the record does not support an obvious causal connection between those alleged oversights and the officers’ decision to use force against a previously hidden and threatening Young. See Harris v. City of Circleville, 583 F.3d 356, 365 (6th Cir. 2009) (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002)[iv]
In other words, the court stated that those possible violations of policy are not sufficiently connected to the need for deadly force, which was caused by Young by hiding and then advancing at officers with a metal skewer in hand pointed at the officer’s torso.
Regarding Young’s mental illness, the court stated that mental illness is only relevant in the use of force analysis if the officers are aware that the disability exists. The court stated
[T]he string of inferences necessary to conclude that the officers were actually aware that it was Young on the second floor and that Young suffered from mental illness that required treating him as an individual with diminished capacity is too attenuated. Thus, that Young suffered from mental illness also does not impact our analysis. Instead, we must consider the video evidence showing that, as the officers reached the top of the stairs, Young stepped determinedly toward Officer Braun with a metal skewer in his hand pointed toward the officer’s body. These facts place the officers’ use of deadly force on the “reasonable” side of our excessive force cases. This is not a case in which officers used force against an already subdued suspect. See, e.g., Bouggess v. Mattingly, 482 F.3d 886, 895-96 (6th Cir. 2007). Nor is it a situation in which we must be wary of the self-serving accounts of police officers. See, e.g., Jefferson v. Lewis, 594 F.3d 454, 462 (6th Cir. 2010). Though Young cannot provide his own version of the events, the body camera footage does provide a more objective understanding of that night’s events. The video shows that Young was hidden from view—even with the banister railings providing some sightline to the second-floor landing—until Officer Braun turned around at the top of the stairs and Young came toward him.[v]
Thus, the officers were not aware of Young’s mental disability so it does not affect the outcome. Further, the threat posed by Young to Officer Braun as shown on body camera, was the most relevant consideration to the reasonableness of the use of deadly force.
Lastly, the court noted that in cases where they have found the use of deadly force to be unreasonable, “there is often evidence that the individual was attempting to obey police orders or was no longer a threat to the officers.”[vi] This, the court observed, is not similar to Young’s case where the video “makes it clear that rather than lowering his weapon in response to the officers’ presence, Young proceeded toward Officer Braun with the metal skewer pointed toward his torso.”[vii]
The court of appeals then held
Because it was not unreasonable for the officers to believe that Young was threatening an officer with death or serious injury, their use of deadly force was not a violation of Young’s Fourth Amendment rights. Because we find no constitutional violation, we need not examine the second prong of qualified immunity. The district court was correct in granting summary judgment to the officers on the § 1983 excessive force claim.[viii]
Therefore, the court appeals affirmed the grant of qualified immunity for the officers.
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. 21-5649 (6th Cir. Decided January 27, 2022)
[ii] Id. at 5-6
[iii] Id. at 9-10 (emphasis added)
[iv] Id. at 12 (emphasis added)
[v] Id. at 13-14
[vi] Id. at 17
[vii] Id. at 18
[viii] Id.
