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by John C. Hall, J.D.
[Special Agent Hall is a legal instructor at the FBI Academy.]
"The calculus of reasonableness must embody allowance 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." -- Graham v.
Connor, 490 U.S. 386, 396-397 (1989)
Federal constitutional standards permit law enforcement officers to use
deadly force to apprehend criminal suspects when there is "probable cause to
believe that the suspect poses a threat of serious physical harm...to the
officer or to others..." and if deadly force "is necessary" to effect the
apprehension.1 This formulation of the constitutional rule by the Supreme
Court suggests two factors - dangerousness and necessity - as relevant to
the question whether deadly force is constitutionally permissible.
With respect to "dangerousness," the Court has suggested that "...if the
suspect threatens the officer with a weapon or there is probable cause to
believe that he has committed a crime involving the infliction or threatened
infliction of serious physical harm...,"2 the officer reasonably could
conclude that the suspect is dangerous. However, the absence of comparable
guidance on the issue of "necessity" has invited serious legal challenges on
this issue alone. These challenges generally may be described as follows:
1) Deadly force was not necessary because less intrusive alternatives were
2) If deadly force was necessary, the officer's prior actions created the
Both arguments concede the reasonableness of an officer's threat assessment,
and both seek to deflect the attention--and the responsibility--from the
suspect's actions to the officer's judgment. The first would impose a duty
on an officer confronted with a lethal threat to consider other options
before using deadly force; the second would impose a duty on an officer to
anticipate and prevent actions of a suspect that might make the use of
deadly force necessary.
Whether the Constitution imposes these duties on police officers is a
question that must be answered if officers and the courts are to understand
and to apply properly the constitutional standards governing the use of
deadly force. The logical starting point is the Supreme Court's
interpretation of the fourth amendment.
In its 1989 landmark decision of Graham v. Connor,3 the Supreme Court
established the fourth amendment standard of "objective reasonableness" as
the appropriate one for assessing a police officer's use of force in the
context of making an arrest or other seizure of a person. Noting that the
standard is "not capable of precise definition or mechanical application,"
the Court emphasized that the issue is one of "reasonableness at the
moment...."4 (emphasis added)
Equally important, the Court held that the inquiry must be limited to "the
facts and circumstances confronting them [the officers]...judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight...."5
It is within this context and from this perspective that the reasonableness
of an officer's judgment of the "necessity" to use deadly force must be
LESS INTRUSIVE ALTERNATIVES
The facts in Bradford v. City of Los Angeles6 illustrate a plaintiff's
contention that an officer was not justified in using deadly force because
less intrusive alternatives were available. In Bradford, an officer used a
police car to strike a kidnaping suspect who was fleeing from the ransom
drop site. The officer had learned from a radio report that the suspect had
arrived by car at the ransom drop site, had picked up a ransom package, had
tossed the package into a waiting car when approached by a police officer,
and then had fled on foot when commanded by other officers to stop.
The suspect suffered serious injuries in the incident, for which he sued the
officer and his department under Title 42 U.S.C. Section 1983. A jury
returned a verdict for the plaintiff.
On appeal, the defendant did not dispute the point that using a car to
strike a suspect constitutes the use of deadly force.
Furthermore, the appellate court agreed that the officer had probable cause
to believe that the plaintiff was committing a crime involving the
threatened infliction of serious physical harm, i.e., the constitutional
standard announced by the Supreme Court in Tennessee v. Garner as justifying
a reasonable belief that a suspect is dangerous. However, in defining the
question before the jury as "whether the amount of force used by [the
officer] was necessary to prevent [plaintiff's] escape," the court ruled
that "the jury could conclude that [the officer's] use of a car as a weapon
was unnecessary because [he] had more reasonable alternatives."7
The court reasoned that the presence of other officers at the drop site and
the available option of driving past the plaintiff to block his path would
support the jury's determination that the officer's "unorthodox actions" of
striking him with the car were unreasonable. The court rejected the defense
argument that the "availability of alternative measures 'is irrelevant' "
and held that when the plaintiff presents "substantial evidence that less
intrusive means were available, it is up to the jury to determine if those
means were reasonable."8
While the plaintiff's claims in Bradford are typical of assertions made in
other cases that deadly force was not necessary because less intrusive
alternatives were available, the appellate court's decision is not typical
of those reached by most other Federal courts confronting the same issue.
In addition, Bradford seems inconsistent with the Supreme Court's views of
the manner in which the reasonableness standard of the fourth amendment is
to be applied.
In a 1973 case9 involving the decision of police officers to inventory the
contents of an arrestee's shoulder bag, the Supreme Court addressed a
defense argument that the police could have accomplished their purposes by
the less intrusive means of simply inventorying the shoulder bag as a unit
and that the availability of this less intrusive alternative made their more
intrusive action unreasonable. Conceding the availability of the less
intrusive option, the Court nevertheless held that the fourth amendment does
not require officers to choose "the least intrusive alternative, only a
reasonable one."10 Although the Court in that case was considering the
reasonableness of a fourth amendment search, a number of Federal courts have
adopted the same view with respect to seizures.
In Plakas v. Drinski,11 a police officer shot and killed a handcuffed
subject who attacked the officer with a fireplace poker.
In a lawsuit against the police officer and the county, the plaintiff did
not dispute that at the moment the officer fired the fatal shot, the suspect
was attacking the officer with the poker.
Nor was it disputed that shortly before attacking the officer, the subject
pointed the poker at the officer and said, "Either you're going to die here,
or I'm going to die here." The primary argument was that the officer could
have and should have used alternative methods short of deadly force to
resolve the situation. It was suggested, for example, that one of the
officers on the scene had a canister of CS gas on his belt and that there
was a K-9 unit in the vicinity that could have been called to the scene to
subdue the subject.
The U.S. district court granted summary judgment for the police.
The appellate court affirmed with the following explanation:
"There is no precedent in this Circuit (or any other) which says that the
Constitution requires law enforcement officers to use all feasible
alternatives to avoid a situation where deadly force can justifiably be
used. There are, however, cases which support the assertion that where
deadly force is otherwise justified under the Constitution, there is no
constitutional duty to use non-deadly alternatives first."12
The court observed that there were essentially three alternatives open to
the officers: 1) Maintain distance from the suspect and try to keep some
barrier between him and them; 2) use some kind of disabling spray; or 3)
use a dog to disarm the suspect. The court also considered that a decision
by an officer under these circumstances must be made after the briefest
"As [the suspect] moved toward [the officer], was he supposed to think of an
attack dog, of...CS gas, of how fast he could run backwards? Our answer is,
and has been, no, because there is too little time for the officer to do so
and too much opportunity to second-guess that officer."13
A related issue in Plakas was the plaintiff's contention that the officer's
employer--notwithstanding the reasonableness of the officer's decision--
should be held liable for not making more choices available. The court
rejected as unwise a policy that would permit juries to hold municipalities
liable for failing to provide different equipment or more police officers
based on some expert's testimony that an arrestee would have been uninjured
had they done so. The court concluded: "There can be reasonable debates
about whether the Constitution also enacts a code of criminal procedure, but
we think it is clear that the Constitution does not enact a police
administrator's equipment list."14
The plaintiffs in cases like Bradford and Plakas focus on availability of
other options at the moment an officer made the decision to use deadly
force. A second line of attack seeks to shift the focus away from the
encounter itself to the events that preceded it.
OFFICER CAUSED OR CONTRIBUTED TO THE NECESSITY
The essence of this argument is that if officers had performed their duties
differently, the suspects would have been denied the opportunity, or
ability, to commit the threatening acts that justified the use of deadly
force. There are at least three problems with this line of argument. First,
it is inconsistent with the Supreme Court's insistence in Graham v. Connor
that the relevant facts and circumstances are those "confronting them [the
officers]...at the moment...."15 (emphasis added) Second, it extends the
application of the fourth amendment to actions and events that precede
either a search or a seizure. And, third, it significantly expands the
breadth of legal duties owed by the police to suspects, effectively making
the police responsible for a suspect's actions as well as for their own.
The court in Plakas declined plaintiff's invitation to review the actions of
the officers preceding the deadly confrontation to determine if the
officers' decisions were correct. The court responded that such reviews
would "nearly always reveal that something different could have been done if
the officer knew the future before it occurred."16 In rejecting these
efforts to shift responsibility for the suspect's actions onto the police,
the court said:
"Other than random attacks, all such cases begin with the decision of a
police officer to do something, to help, to arrest, to inquire. If the
officer had decided to do nothing, then no force would have been used. In
this sense, the police officer always causes the trouble. But it is trouble
which the police officer is sworn to cause, which society pays him to cause
and which, if kept within constitutional limits, society praises the officer
Scott v. Henrich18 clearly illustrates the second line of attack on the
necessity of an officer's use of deadly force. In this case, two police
officers went to an apartment in response to a "shots fired" call. A witness
told them that "he had seen a man fire a shot or a couple of shots...and
that [the man] was acting strange or crazy and he was staggering...." A
second witness directed the officers to a nearby apartment building where
the gunman was seen entering.
When the officers knocked on the street-level door of the apartment building
and identifed themselves, a man confronted them with a "long gun." One of
the officers then fired a shot, missing the subject; the second officer,
believing the subject had fired, shot and killed the subject.
In a lawsuit against the officers, plaintiff claimed that the officers
should have used alternative measures before approaching and knocking on the
door. Through the testimony of an expert witness, plaintiff asserted that
the officers' conduct created an unreasonable risk of armed confrontation.
Citing the department's internal guidelines, the expert opined that the
officers should not have tried to flush out the suspect immediately, but
instead, should have developed a tactical plan, sealed possible escape
paths, called for back up, and tried to coax him into surrendering.
The appellate court was not impressed. Observing that "the appropriate
inquiry is whether the officers acted reasonably, not whether they had less
intrusive alternatives available to them,"19 the court stated:
"Requiring officers to find and choose the least intrusive alternative would
require them to exercise superhuman judgment. In the heat of battle with
lives potentially in the balance, an officer would not be able to rely on
training and common sense to decide what would best accomplish his mission.
Instead, he would need to ascertain the least intrusive alternative (an
inherently subjective determination) and choose that option and that option
only. Imposing such a requirement would inevitably induce tentativeness by
officers, and thus deter police from protecting the public and themselves.
It would also entangle the courts in endless second-guessing of police
decisions made under stress and subject to the exigencies of the moment."20
Other courts likewise have refused to accept the argument that police
officers caused a confrontation by not displaying a badge, by failing to
wait for backup, or by allegedly violating some other "police procedure."21
Perhaps the most bizarre illustration of the argument is found in Carter v.
Buscher,22 where police officers devised a plan to arrest a man who had
contracted to have his wife killed. The arrest plan went awry, and the
suspect opened fire on the police, killing one officer and wounding another
before being killed himself. The deceased suspect's wife (the intended
victim of the murder plot) then filed a lawsuit against the police, alleging
that "by reason of their ill conceived plan...the [officers]... provoked a
situation whereby unreasonable deadly force was used in the attempt to seize
Observing that "pre-seizure conduct is not subject to Fourth Amendment
scrutiny," and that no seizure occurred until the suspect was shot, the
court held: "Even if [the officers] concocted a dubious scheme to bring
about [the suspect's] arrest, it is the arrest itself and not the scheme
that must be scrutinized for rea-sonableness under the Fourth Amendment."24
The U.S. Supreme Court has held that reasonableness under the fourth
amendment does not require police officers to choose the least intrusive
alternative, only a reasonable one. Following that principle, most courts
have rejected arguments that the use of deadly force was not necessary
because officers had less intrusive options available or it was made
necessary by the actions of the officers themselves.
These decisions limiting potential liability claims should encourage law
enforcement policymakers to continue to develop appropriate policies and
procedures to guide officers in the use of deadly force without undue
concern that those initiatives will become weapons in the hands of
litigants. The training and equipping of a police department should be
governed by the positive goals of providing effective and efficient law
enforcement services to the community. This includes giving proper weight
to the safety of the community and its police officers. Training programs
and procedural guidelines designed to effect these general purposes are not
intended to create new and broader legal duties that police officers owe to
their potential assailants.
1 Tennessee v. Garner, 471 U.S. 1, 11 (1985).
3 490 U.S. 386 (1989).
4 Id. at 396.
5 Id. 396-397.
6 21 F.3d 1111 (Unpublished) Nos. 92-56173 and 93-55051 (9th
Cir.[Cal.])(1994 WL 118091).
7 Id. at 3.
8 Id. at 4.
9 Illinois v. Lafayette, 462 U.S. 640 (1983).
10 Id. at 647. See also, United States v. Martinez-Fuerte, 428 U.S. 543
11 19 F.3d 1143 (7th Cir.), cert. denied, 115 S. Ct. 81 (1994).
12 Id. at 1148. See also, Forrester v. City of San Diego, 25 F.3d 804 (9th
Cir. 1994); Collins v. Nagle, 892 F.2d 496 (6th Cir. 1989); and Ford v.
Childers, 855 F.2d 1271 (7th Cir. 1988).
13 Id. at 1149. Regarding the plaintiff's argument that the police could
have used a dog to subdue the suspect, the court observed:
"It is unusual to hear a lawyer argue that the police ought to have caused a
dog to attack his client, but he is right that such an attack might have led
to a better result for his client (and would, in our view, have led to a
different sort of lawsuit)."
15 Graham, 490 U.S., at 396.
16 Plakas, 19 F.3d, at 1150.
18 978 F.2d 481 (9th Cir. 1992); withdrawn and reissued, Nov. 2, 1994,
____F.3d_____ (9th Cir. [Mont.]); 1994 WL 596643.
19 Id. at 3.
21 See, e.g., Drewitt v. Pratt, 999 F.2d 744 (4th Cir.1993); Fraire v. City
of Arlington, 957 F.2d 1268 (5th Cir.), cert. denied, 113 S.Ct. 462 (1992);
and Greenridge v. Ruffin, 927 789 (4th Cir. 1991).
22 973 F.2d 1328 (7th Cir. 1993).
23 Id. at 1330.
24 Id. at 1333.
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