EXCESSIVE FORCE: ALWAYS ACT REASONABLY
By Jim Chapman, Attorney, Public Agency Training Council
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Can deadly force also constitute excessive force in violation of a suspect’s Fourth Amendment rights under the United States Constitution? As usual, the answer under the law is: maybe.
The United States Court of Appeals for the Eleventh Circuit recently had occasion to examine this issue in Wilson v. Miller, 2016 WL 2990381 (11th Cir. May 24, 2016). In Wilson, an officer with the Pelham, Georgia, police department shot and killed a suspect who disobeyed the officer’s commands and lunged towards the officer. The administrators of the suspect’s estate sued the officer and other employees of the City of Pelham, Georgia, in federal court under 42 U.S.C. § 1983 for violating the suspect’s constitutional rights. Specifically, the administrators claimed that the police officer used excessive force in violation of the suspect’s Fourth Amendment rights when the officer shot and killed the suspect.
The specific facts as set forth by the Eleventh Circuit are relatively straightforward and are set forth below:
This case arises from the fatal shooting of Wilson. On 2 March 2012, Sergeant Cook and another officer with the Pelham Police Department responded to a 911 call about a naked man who was seen running through a backyard. Shortly thereafter, Sergeant Cook radioed Officer Miller, an investigator with the Pelham Police Department, for assistance in locating the man and requested that Officer Miller bring the Department’s four-wheeler.
When Officer Miller arrived at the scene, the 911 caller told Officer Miller that a man had run naked through her backyard and into the woods behind her house. Given the man’s reported behavior, Officer Miller suspected that the man might have been under the influence of drugs or alcohol.
Officer Miller entered the woods on foot to locate the man. Several minutes later, Officer Miller heard someone behind him say “hey.” Officer Miller turned around and saw a naked man – later identified as Wilson – crouching down about 50 yards away.
Officer Miller asked Wilson if he was okay. Wilson responded immediately by asking Officer Miller whether he had a gun, to which Officer Miller said “yes.” Wilson then asked Officer Miller if he wanted to use the gun, and Officer Miller said “no.” Wilson then said “well, you’re going to have to, because you’re going to have to kill me or I’m going to kill you. And that’s what I aim to do.”
Wilson then stood up from his crouched position and began walking toward Officer Miller with his fists closed. Officer Miller saw that Wilson was holding something in his left hand. Officer Miller could tell that the object was no gun, but thought it could be a small knife.
Officer Miller began talking to Wilson in an effort to calm Wilson down. Officer Miller – who had been in radio contact with his fellow officers throughout the search – also began requesting back up and reporting that Wilson had threatened to kill him.
Meanwhile, Wilson continued to approach Officer Miller. Officer Miller took his gun out of its holster and aimed it toward the ground as he started backing away from Wilson. In response to Officer Miller’s continued efforts to calm Wilson down, Wilson said “it’s too late for that, you’ve already told them where I’m at, they’re coming for me.” Then, when Wilson got within six feet of Officer Miller, Wilson raised his arms and made a lunging motion toward Officer Miller. Officer Miller fired his gun, striking Wilson twice in the stomach. Wilson later died of his wounds.
Wilson, 2016 WL 2990381, at * 1-2.
The trial court considered the Parties’ arguments and granted summary judgment in the officer’s favor. On appeal, the Eleventh Circuit agreed and affirmed the district court’s judgment in the officer’s favor.
In affirming, the Eleventh Circuit explained that, “[a]lthough suspects have a right to be free from force that is excessive, they are not protected against a use of force that is necessary in the situation at hand.” Id. at * 3 (citing Jean-Baptiste v. Gutirrez, 627 F.3d 816, 821 (11th Cir. 2010). “No precise or rigid preconditions exist for determining when an officer’s use of deadly force is excessive.” Id. (citing Scott v. Harris, 127 S. Ct. 1769, 1777 (2007)). “Instead, in deciding the merits of a claim of excessive force, the court must in each case determine whether – given all the facts and circumstances of a particular case – the force was ‘reasonable’ under the Fourth Amendment.” Id. (citing Graham v. Connor, 109 S.C.t 1865, 1871-72 (1989).
The Eleventh Circuit, then, went on to explain what a plaintiff must prove in order to succeed on an excessive force claim under the Fourth Amendment:
“In determining the reasonableness of the force applied, we look at the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balance the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate.” McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). We consider, among other things, “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 109 S.C.t at 1872.
We stress that “[t]he ‘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. And we must allow “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.” Id. “We are loath to second-guess the decisions made by police officers in the field.” Vaughn v. Cox, 343 F.3d 1323, 1331 (11th Cir. 2003).
In Wilson, the Eleventh Circuit opined that the evidence demonstrated that the officer did not violate the suspect’s constitutional rights when the officer shot him. The Eleventh Circuit noted that the suspect was acting strangely; that the suspect had threatened to kill the officer; that the suspect possessed a concealed object; and that the suspect continued to move aggressively towards the officer despite the fact that the officer had backed away from the suspect and had taken his gun out of his holster. The Eleventh Circuit noted that the officer was faced with a tense, uncertain, and rapidly evolving situation and that the officer made a “split-second” decision to shoot the suspect in order to avoid the risk of a serious injury to himself. The Eleventh Circuit concluded that an objective officer in the Defendant police officer’s situation could have reasonably believed that the suspect posed an immediate threat of harm to the officer’s safety. Therefore, the Eleventh Circuit affirmed the district court’s judgment and concluded that the officer did not violate the suspect’s Fourth Amendment rights or use excessive force against him when he used deadly force.
Finally, the Eleventh Circuit noted that the fact that the suspect did not possess a weapon did not change the court’s conclusion. Instead, the Eleventh Circuit reiterated that the reasonableness of force used is not judged “with 20/20 vision of hindsight.” Graham, 109 S. Ct. 1872. And, an officer need not wait until he is attacked physically before determining reasonably that he is in imminent danger of serious injury. Long v. Slaton, 508 F.3d 576, 583 (11th Cir. 2007) (concluding the use of deadly force was reasonable, even though other less-lethal means of preventing the suspect’s escape may have existed, because “the police need not have taken that chance and hoped for the best.”).
Accordingly, the Eleventh Circuit’s opinion in Wilson teaches that an officer may use deadly force against a suspect without running afoul of the suspect’s Fourth Amendment rights. In using deadly force, the officer must act reasonably under the circumstances. The officer must consider the threat, the severity of the crime at issue, and the threat of danger to himself or to others. If these factors indicate, under the stress and dangers of a fast evolving situation, an officer may use deadly force without being held liable for exerting excessive force in violation of the suspect’s Constitutional rights.
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.