Use of Deadly Force: Pre-Shooting Conduct and the 21 Foot Rule
By Jack Ryan
A circumstance that officers often face is the suicidal
individual who, in essence, holds him or herself hostage. These are difficult
cases. While such cases require a police response, officers sometimes
are caught between a rock and hard place. Much has been written about
the concept of “suicide by cop” but the fact remains that
officers are often called to deal with these situations and are expected
to prevent the suicide without causing injury or death. At times this
is an impossible task. A common denominator that runs through this type
of case is an attack on the officer’s tactics in approaching the
individual. While at the moment the officer shot, he or she was in danger,
the theory is that the officer did something that was tactically incorrect
in the approach that contributed to the need to use deadly force.
Estate of Larsen v. Denver, serves
as an example. On April 15, 2003, Lyle Larsen called 911 and reported
that he was going to kill himself or someone else. Officers responded
to the scene and found Mr. Larsen holding a knife that was more than a
foot long. Mr. Larsen was standing on the high side of a front yard which
was above the sidewalk. Officer Murr and Brase both ordered Larsen to
drop the knife. It initially appeared that Larsen was about to comply,
but then he suddenly raised the knife over his head. The officers reported
that his eyes got “as big as the size of quarters” and Larsen
turned toward Officer Murr and pointed the knife at him. The officers
continued ordering Larsen to drop the knife. As he stepped toward Officer
Murr, Murr used deadly force, shooting and killing Larsen. At the time
of the shooting Murr and Larsen were separated by anywhere from 7-20 feet.
While there was no question that Officer
Murr’s use of deadly force was necessary at the time he fired, the
issue raised by the plaintiffs’ was whether Officer Murr’s
actions leading up to the need to use deadly force had, in some way, created
the need to use deadly force.
The Estate contended “that Officer Murr contributed
to the deadly confrontation because he did not wait for and failed to
request backup assistance, failed to retreat or take a defensive position
behind a truck or light pole, failed to ‘talk Mr. Larsen down,’ placed
himself too close to Mr. Larsen, failed to use other means to disarm Mr.
Larsen (i.e., with his baton), failed to request for a member of the SWAT
team to use less-lethal weaponry, failed to request other assistance from
officers trained in crisis techniques, and failed to call for a less lethal
weapon to be provided for his own use. In support of such contention,
the Estate proffers the opinion of its expert, H. Ellis Armistead, that
Officer Murr had other options available other than use of deadly force. ”
The court utilized the three part Graham
test in order to analyze Officer Murr’s actions. The court added
a fourth prong utilized by some courts. “In this analysis, several
non-exclusive factors are considered -- the severity of the crime at issue,
whether the suspect posed an immediate risk of harm to an officer or another
person, whether the suspect was evading arrest, and whether the officer's
own conduct created the need to use any force. ”
In response to the plaintiff’s allegations
that Officer Murr actions before the shooting contributed for deadly force,
the court responded: “This may be true, but for purposes of this
analysis, the Court does not determine whether Officer Murr's response
was the best or most desirable response under the circumstances, only
whether Officer Murr's belief and response was a reasonable one. Thus,
the question is not whether Officer Murr could have used less- lethal
alternatives, but whether it was reasonable for him to use lethal force
under these circumstances.” Thus, while the court considered Officer
Murr’s pre- shooting conduct, the court judged this conduct against
the objective reasonableness standard and reiterated the position taken
by all federal courts which indicates that officers are not required to
use the “least” amount of force necessary or the “best” alternative,
they are required to do that which is objectively reasonable.
After reviewing Officer Murr’s conduct, the court
concluded that his actions were reasonable. While there was no need for
the court to go any further in its opinion, the court made several instructive
comments on other issues raised by the lawsuit. The plaintiff’s
alleged that the city’s failure to enforce the “21 foot rule” policy
led to Mr. Larsen’s death. The court concluded that the 21 foot
rule is a “formula used to aid an officer in an assessment of risk” and
is not a policy. The plaintiff also contended that the agency failed to
provide patrol officers with less-lethal options at the time of this death,
specifically taser, bean bag and pepper-ball. While some other courts
have indicated that it is beyond the federal courts jurisdiction to give
law enforcement agencies a laundry list of weapons that must be provided
to officers, the court here did not take that approach. Instead, the court
rejected this claim asserting that there was no evidence in the case to
suggest that Officer Murr’s response to Mr. Larsen would have been
different if he had these options available.
i Larsen v.
Denver, 2006 U.S.
Dist. LEXIS 8316 (Dist. Of Colorado 2006)
Jack Ryan is an attorney in Rhode Island, a graduate Juris Doctorate,
Cum Laude Suffolk University Law School. Jack has 20 years police experience
as a police officer with the Providence Police Department, Providence, RI.
Jack’s law degree and experience as a police officer gives
him the unique perspective of the legal and liability issues.
Jack is a former adjunct faculty member at Salve Regina University
and lectures frequently throughout the United States.
Jack is a Standing
Committee Member of the Homicide
Cold Case Review board.