An article I recently wrote with my writing partner, Ali Breshears, that was published in the Idaho Magazine, the Advocate. It examines use of force decision making for LEOs under the new White v. Pauly case. Re-posted here with permission of the Advocate.
Use of Force & Qualified Immunity Under White v. Pauly
Alexandra A. Breshears & Terry R. Derden
Shots are fired at night in a dark alley. A police officer is dispatched to the emergency call. He arrives to find his fellow officers pinned behind a dumpster and firing at suspects. As bullets fly overhead, and without knowing the basics of who is shooting at his fellow officers, the officer un-holsters his weapon and dives out of the patrol car. This officer now has choices to make and must react to the suspect’s action. In all the scenarios that play out from this point forward, the officer makes a use of force decision. In the best case scenario, no one dies. In the worst case, both officer and suspect die. In between lies the nuance of use of force decision-making, the application of use of force case law to 42 U.S.C. §1983 claims against the officer, and the ability of a municipality to avoid a claim of excessive force.
Poor use of force decisions are one of the highest areas of liability for any city or county law enforcement entity. In addition to what it costs the agency in terms of dollars when a decision is executed poorly, the decision can affect the suspect and the officers involved both physically and mentally for years. A big problem is that agencies fail to train use of force “decision-making.” While the application of force is routinely trained on by police agencies, the decision-making process is often left behind. The reason behind this is simple. Teaching someone how to pull and fire a firearm or Taser (the mechanics and muscle memory) is extremely easy compared to teaching them when and why they should decide to do it and then how they should make the decision in a fraction of a second under pressure and then how to live with the consequences.
An officer’s decision to respond to a situation with a use of deadly force is more nuanced than routine applications of force. This article will provide a current overview of use of force case law, and how a new case impacts the shield of qualified immunity when an officer is the defendant in a suit claiming he or she used excessive force. This new case law highlights the nuances in decision-making an officer faces when making a deadly-use-of-force decision.
Use of Force Overview: Garner and Graham
In 1985, the United States Supreme Court changed the constitutional standard in analyzing an officer’s use of force to a Fourth Amendment standard where previously, the standard was under the Eighth Amendment’s protection against cruel and unusual punishment.[1]In making this change, the Supreme Court recognized an officer’s use of force against a free citizen, not even charged formally with a crime, is a seizure upon their liberty, as opposed to punishment being meted out to convicted prisoners. In Tennesee v. Garner, the Court held that the seizure of a person via deadly force “shooting them dead” was a seizure.[2]The test for whether the conduct violated a constitutional right under 42 U.S.C. §1983 examines the conduct of the officer in shooting the suspect to determine if it was “objectively reasonable.” In that case, the Supreme Court found the shooting of an 8th grader climbing a fence after stealing a purse did not meet this new reasonableness requirement, stating the harm resulting from failing to apprehend the student.
In 1989, the United States Supreme Court revisited the reasonableness of police using force in Graham v. Connor.[3]Mr. Graham was detained on suspicion of robbery, a robbery which later turned out to not have happened at all. The Graham Court developed a three factor test to determine the “objective reasonableness” of a police officer’s action based on the totality of circumstances. The first factor was to determine the “severity” of the crime at issue, recognizing from prior cases that the response of force should reasonably be based on whether the crime at issue is a lowly misdemeanor or a heinous felony. The second factor, and often considered the most important, is whether the suspect poses an immediate threat to the safety of the officer or others. The third factor is whether the suspect was actively resisting or otherwise attempting to evade arrest by flight.
This newly designed test allowed for any court in the nation to evaluate an officer’s actions after the fact, whether that use of force was hand-to-hand control of a suspect up to shooting a suspect dead. In all cases, the test can be applied to the use of force decision made in the moment. The Supreme Court recognized that this new test was designed to be applied in a manner that gives “allowance for the fact that police officers are often forced to make split-second judgements—in circumstances that are tense, uncertain, and rapidly evolving. . . .”
The Court also noted that “the reasonable of a particular use of force must be judged from the perspective of a reasonable officer on the scene . . .” and “that the determination of the factors can only take into account what the officer knew at the time of the force decision and not with 20/20 hindsight.”[4]This protects the officer when a good use of force decision still results in a bad outcome. For example, when an officer shoots and kills a person who appears to have been aggressing the officer with a black handgun. After the officer shoots the suspect, he discovers that the weapon is a realistic looking movie prop gun that cannot actually fire. The court would evaluate that the officer believed the suspect had a real weapon and posed a real instead of the fact the gun turned out to be inoperable.
Use of Force: The Ninth Circuit’s Additional Factors
In the Ninth Circuit, the court has instructed that the three factors outlined in Grahamare not exclusive. Rather, lower courts should examine the totality of the circumstances and consider “whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.”[5]This inclusion of “any other exigent circumstances present at the time” means we now examine information relevant to the force decision such as the officer and suspect’s physical ability, the officer’s experience and knowledge of techniques, the environmental factors of where the act happened, and the officer’s knowledge about suspect prior to and at the time force is applied.[6]Examining prior knowledge becomes an important factor when an officer is not responding to a crime at all (completely removing Factor 1 in regards to severity) such as a call for a person in a mental health crisis who may be suicidal now that in most jurisdictions suicide is no longer a codified criminal act.[7]
Since the development of use of force case law in the Supreme Court in the 1980’s, many cases have further outlined the application of the Grahamthree factor test. In any use of force situation (including lawsuits where the plaintiff claims excessive force) a court will consider if the officer’s actions were objectively reasonable in light of the facts and circumstances known to the officer at the moment of decision. The court then carefully balances the nature of the intrusion of the individual’s Fourth Amendment right against the government’s need to intrude upon that right. The strength of the government’s interest is evaluated by the “GrahamFactors.”[8]
A Hole in the Graham Framework:White v. PaulyScenario
However, both Graham and Garnerlay out the excessive force principles at only a general level,[9]and clearly established law should not be defined at a high level of generality.[10]Qualified immunity attaches when an officer’s conduct does not violate clearly established law that a reasonable person would have known about.[11]The Supreme Court has routinely held that the clearly established law must be particularized to the facts of the case.[12]The Court only intended the landmark cases of Grahamand Garner to operate as a high-level guide for deciding use of force cases,[13]leaving gaps in the analysis. The facts of White v. Paulyhighlight one such gap in the use of force case law.
White v. Paulyinvolves a shootout where a third officer arrived at the scene as backup after the shooting had begun and shot a suspect when the first officers on the scene had not sufficiently identified themselves as police officers. Officers White, Truesdale, and Mariscal responded to a 911 call reporting Daniel Pauly as a drunk driver who was swerving all over the road.[14]Daniel had also gotten out of the car to confront the two women who had reported him and were following him.[15]The officers arrived at the off-ramp where the two women were waiting to take a statement.[16]The officers decided that there was insufficient probable cause to arrest Daniel, but decided to speak with him to get his side of the story, make sure nothing else happened, and determine if he was intoxicated.[17]
Officer White remained at the off-ramp in case Daniel returned and Officers Truesdale and Mariscal drove in separate patrol cars toward Daniel’s house.[18]They did not use their flashing lights.[19]When Officers Truesdale and Mariscal arrived at the address, they noticed two houses, one with no lights on and the second behind a hill with lights on.[20]The officers parked their cars near the first house, but did not find Daniel’s truck.[21]They noticed the lights on in the second house and approached it in a covert manner to maintain officer safety, only intermittently using their flashlights.[22]After reaching the second house, the officers found Daniel’s truck and spotted two men moving around inside the house.[23]They radioed Officer White to join them.[24]
Daniel and his brother Samuel Pauly became of the two officer’s presence outside their residence.[25]They yelled out, “Who are you?” and “What do you want?”[26]Officers Truesdale and Mariscal laughed and responded, “Hey, (expletive), we got you surrounded. Come out or we’re coming in.” and “Open the door, State Police, open the door.”[27]The Pauly brothers claim that they only heard someone yelling, “We’re coming in. We’re coming in.” but did not hear the officers identify themselves as “State Police.”[28]The officers testified that they saw someone run to the back of the house, so Officer Truesdale positioned himself behind the house and shouted, “Open the door, come outside.”[29]
Officer White had parked at the first house and half-jogged, half-walked to the Paulys’ house, arriving just as one of the brothers said, “We have guns.”[30]When Officer White heard that statement, he drew his gun and took cover behind a stone wall fifty feet from the front of the house.[31]Officer Mariscal took cover behind a pickup truck.[32]Several seconds after yelling, “We have guns,” Daniel stepped part of the way out of the back door and fired two shotgun blasts while screaming loudly.[33]A few seconds later, Samuel opened the front window and pointed a handgun in Officer White’s direction.[34]Officer Mariscal fired immediately at Samuel but missed.[35]Seconds later, Officer White shot and killed Samuel.[36]Samuel’s estate and Daniel sued all three officers, claiming that the officers had violated Samuel’s Fourth Amendment right to be free from excessive force.[37]All three officers moved for summary judgment, claiming qualified immunity.[38]
The Supreme Court held that immunity protects “all but the plainly incompetent or those who knowingly violate the law.”[39]The Fourth Amendment violation must be apparent.[40]The Court found that Office White did not violate clearly established law or right.[41]The unique facts and circumstances of the case, especially White’s late arrival on the scene, were an important indication that White did not violate a clearly established right.[42]The Court in Paulyheld that “no settled Fourth Amendment principle requires [an] officer to second-guess the earlier steps already taken by his or her fellow officers.”[43]An officer may assume that proper procedures, such as officer identification, have already been followed.[44]Additionally, the Court has held that “qualified immunity is effectively lost if a case is erroneously permitted to go to trial.”[45]Therefore, it can be dismissed on summary judgment.[46]
Practical Effects for Officers and Agencies
Any officer responding to a “shots fired” call where others are engaged in a shootout is immediately put at a major disadvantage. The Court recognized that the application of the Grahamfactors becomes difficult when the officer never had opportunity to determine the pre-contact information in the moment and a court later relies on that pre-contact information to determine if the officer’s actions are justified. While a situation like Paulycould play out in many different scenarios when officers are engaging an active shooter in a public place. But the three factor test, the Ninth Circuit’s addition of “any other exigent circumstances,” and the decision in White v. Paulyshould give officers some comfort that they have made an objectively reasonable decision. As the Court states, “an officer who faces an occupant pointing a firearm in his direction does not have to refrain from firing his weapon, or first shouting out a warning while pinned down or kneeling behind a rock.”[47]The Court takes seriously the mandate it made in so many previous cases: officers are to make objectively reasonable decisions based on what they know in the moment, focusing on the immediacy of the threat facing them.
Agencies can do several things to put themselves and their officer in a position to avoid this and other use of force scenarios resulting in the worst of outcomes. First, an agency needs to ensure enough officers are available to handle calls for service to prevent officers from being overwhelmed or responding to situations which are dynamically evolving without the ability to effectively communicate. While every police agency administrator deals with the need to meet a mandatory staffing minimum (the minimum number of officers needed to work each shift in order to properly respond to the number of calls for service every day), we should expect that staffing minimum policies do not (for the sake of only budgetary reasons) directly affect how many officers are available to handle calls for service and who is available to serve as a back-up unit or even a reserve unit to be called in for major situations. Second, an agency needs to reinforce in training their officers’ ability to communicate effectively, both with the public and with each other. Training effective communication under pressure elevates the bar for all involved in a use of force scenario to know what is at stake, anticipate their teammate’s actions, and likely make a sound use of force decision. Third, and most importantly, agencies need to routinely train in use of force decision-making via classroom trainings, tabletop scenarios, and during live physical drills (such as when at the firing range) to create in their officers a mental toughness and agility officers need to protect themselves and the public.
Conclusion
The English politician, Edmund Burke, once wrote to French Revolutionists that “our patience will achieve more than our force.” These words apply directly to any police use of force situation as the more patience an officer exercises before using force is almost guaranteed to assist in later showing the application of the force was “objectively reasonable.” Additionally, taking time to plan as a team before engaging any suspect likely leads to a ruling that officers acted constitutionally as group decision-making usually leads to better use of force decision-making. However, even the best officer with the best training must accept that when put in the untenable situation of showing up to the middle of the gun fight and being required to use deadly force, the likelihood of a lawsuit is extremely high. The comfort those officers have is that the Court’s test to determine their objective reasonableness in the use of force action is fairly designed and the Court recognizes this fairness in cases with facts like White v. Pauly with tense, uncertain, and rapidly evolving incidents where use of force decision-making is the hardest.
[1]Tennessee v. Garner, 471 U.S. 1 (1985). [2]Id.[3]Graham v. Connor, 490 U.S. 386 (1989). [4]Id.[5]Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009) (citing Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994); Deorle v. Rutherford, 272 F.3d at 1280 (quoting Graham, 490 U.S. at 396–97)).[6]Deorle, 272 F.3d at 1272.[7]SeeSheehan v. City & County of San Francisco, 743 F.3d 1211 (9th Cir. 2014), reversed on other grounds.[8]See Mason v. Horan, 73 Fed.Appx. 967 (9th Cir 2003); Billington v. Smith, 292 F 3d 1177 (9th Cir 2002); and Robinson v. Solano County, 278 F 3d 1007 (9th Cir. 2002).[9]White v. Pauly, 137 S.Ct. 548, 552 (2017).[10]Id.[11]Id.at 551 (citing Mullenix v. Luna, 577 U.S. ___, ___, 136 S.Ct. 305, 308 (2015).[12]Id.at 552.[13]Id.[14]Id.at 549.[15]Id.[16]Id.[17]Id.[18]Id.[19]Id.[20]Id.[21]Id.[22]Id.[23]Id.[24]Id.[25]Id.[26]Id.[27]Id.at 549–50.[28]Id.at 550.[29]Id.[30]Id.[31]Id.[32]Id.[33]Id.[34]Id.[35]Id.[36]Id.[37]Id.[38]Id.[39]Id.at 551.[40]Id.at 552.[41]Id.[42]Id.[43]Id.at 552.[44]Id.[45]Id.at 551.[46]Id.[47]Id.at 551.