Tennessee v. Garner, 471 U.S. 1 (USSC)(1985)-The use of deadly force to stop a fleeing felon is not justified unless it is necessary to prevent the escape, and it complies with the following requirements. The officer has to have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Graham v. Connor, 490 U.S. 386 (1989)-This case sets aside the standard for determining the excessive use of force as established in the 1973 case of Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973). If the use of force violates the 4th Amendment of the U.S. Constitution, then the standards listed in this Amendment will be used."All claims that law enforcement officials have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's 'objective reasonableness' standard, rather than under a substantive due process standard." In other words, was the decision of the officer reasonable based on the information he had at the time.
The case further dictates that the arrest must be reasonably proportionate to the need of force as measured by:
- The severity of the crime.
- The danger to the officer.
- And, the risk of flight.
Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992)-Police officers used a Taser multiple times on a mentally ill potentially homicidal subject armed with two knives. The court ruled that it was not excessive force when officers used a less-lethal means to avoid lethal force.
Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)-If the actions of the suspect justifies the use of deadly force, the officer is not required to use less-than-lethal force before employing deadly force. The court noted that "...where deadly force is otherwise justified under the Constitution, there is no constitutional duty to use non-deadly alternatives first."
US v. Dotson, 49 F.3d 227 (6th Cir)(1995)-"Once police have the reasonable suspicion needed to justify an investigatory stop, they may use the forcible means necessary to effectuate that stop, provided their actions are reasonable under the circumstances."
Gallegos v. City of Colorado Springs No. 961298 (1997)(10th Cir.)-A police officer can take precautionary measures to restrain a person during a "Terry" stop. In this case, the officer had reasonable suspicion to detain Gallegos. Gallegos refused to stop for the officer. The officer grabbed him. He pulled away and kept walking. This occurred a couple of times until Gallegos turned and took a fighting stance. Gallegos was taken to the ground with an arm bar.
Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997)-Police responded to a shots fired call at a party. Ofc Carr, heard a gunshot, then encountered Montoute carrying a sawed-off shotgun. Carr and another officer repeatedly ordered Montoute to drop the shotgun. He refused and kept approaching. He then passed the officers and took off running. Carr shot him in the buttock. Montoute filed a 1983 suit. The court held: "In view of all of the facts, we cannot say that an officer in those volatile circumstances could not reasonably have believed that Montoute might wheel around and fire his shotgun again, or might take cover behind a parked automobile or the side of a building and shoot at the officers or others. Indeed, if the officers had allowed Montoute to take cover, or perhaps circle back around to the crowd, he could have posed even more danger than when he had presented a clear target as he approached them." The court ruled in favor of the officer.
United States v. Myers, 106 F.3d 936 (10th Cir. 1997)-Officers used a flash-bang during the execution of a search warrant at Myer's residence. Myers had a history of drug trafficking, fire-bombing, and possession of a firearm. Myer's wife and children were in the home. The court held that the use of the flash-bang was reasonable under the circumstances. The court did have concern about using the flash-bang with children in the home.
Headwaters Forest v. Humboldt County, 9817250 - (2000)(9th Cir.)-The protestors were nonviolent and unarmed. None were physically menacing. They posed no danger to themselves. A reasonable factfinder could have concluded that using pepper spray bore no reasonable relation to the need for force.
Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir 2001)-The case involves the use of hog-tie restraints which is the restraining of a person’s hands and feet together behind the back. Held: We do not reach the question whether all hog-tie restraints constitute a constitutional violation per se, but hold that officers may not apply this technique when an individual's diminished capacity is apparent. This diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition, apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well-being. In such situations, an individual's condition mandates the use of less restrictive means for physical restraint.
Deorle v. Rutherford, No. 9917188ap (2001)(9th Cir.)-The use of less than deadly force, in this case a bean bag shotgun round, that can cause serious injury may be utilized only when:
- There is a strong government interest that warrants its use, and
- When feasible verbal warnings of its use are given.
Deorle was a mentally disturbed person that was upset, but was complying with verbal commands from officers on the scene. Off. Rutherford was armed with a bean bag shotgun. As Deorle unarmed walked toward him, Off. Rutherford without warning shot him with a bean bag at 30 ft. The bean bag hit Deorle in the eye causing the loss of the eye and other serious physical injuries. The only crime Deorle committed to this point was a minor disturbance. The court ruled that this was an excessive use of force. The US Supreme Court refused to hear this case on appeal.
Ewolski v. City of Brunswick, No. 02a0133p (2002)(6th Cir.)-The court advised the following: "We are aware of no controlling precedent since Russo holding that the use of non-lethal force against an armed and volatile suspect constitutes excessive force." In this case the police were attempting to arrest suspect Lekan after he shot a police officer. The police used tear gas and psychological tactics in an attempt to avoid deadly force.
Martinez v. New Mexico Dept. Of Public Safety, 47 Fed. Appx. 513 (10th Cir. 2002)-It is unreasonable to use pepper-spray as a pain compliance technique where the suspect is restrained in handcuffs and is only being verbally resistant. In this case Martinez was arrested for a warrant. She was handcuffed and escorted to the patrol car. Martinez refused to sit in the unit until the Trooper showed her his identification. Instead of showing the ID, he sprayed her with pepper spray.
Vinyard v. Wilson, No. 02-10898 (11th Cir. 2002)-Vinyard was arrested for disorderly conduct. She was secured in handcuffs and placed in the caged rear seat of the patrol unit. Vinyard got into a verbal exchange with the arresting officer during transport. He pulled the unit over and pepper sprayed her. Vinyard did not resist arrest. She made no attempt to flee. She was secured and only posed a nuisance to the officer. Therefore, his actions were an excessive use of force.
Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004)-It is not reasonable to use a flash-bang device under the Fourth Amendment by throwing it blindly into a room occupied by several innocent sleeping bystanders absent a strong governmental interest. In this case officers threw a flash-bang device in a room where Boyd was sleeping on the floor. The device went off next to her burning her arm.
Before deploying a flash-bang, the officer needs to-
1. Weigh the severity of the threat.
2. Look at the deployment area to minimize injury.
3. Give a warning where possible.
Isom v. Town of Warren Rhode Island, 360 F.3d (1st Cir. 2004)-Isom was emotionally disturbed. He was armed with an ax and entered a liquor store where he took hostages. An officer pepper sprayed him. He turned, raised the ax, and charged the officers. He was shot and killed. The family sued claiming the pepper spraying of Isom inflamed the situation leading to the use of deadly force. The Court held that the actions of the officers was reasonable.
Kesinger v. Herrington, 381 F. 3d 1243 (11th Cir. 2004)-Kesinger was a mentally ill person standing in traffic wanting to commit suicide. A plain-clothed detective named Herrington saw him and stopped his vehicle. He motioned Kesinger to get out of the traffic. kesinger charged him down. Kesinger told him that both of them were going to die. Herrington retreated to his vehicle. Kesinger attacked him. He heard two loud banging sounds and his car windows shattered. He thought the he was being shot at. Herrington returned fire and killed Kesinger. Kesinger broke the windows with his fists. He did not have a gun. The Court held that he shooting was justified.
Scott v. Harris, 000 US 05–1631 (2007)-Deputy Timothy Scott, petitioner here, terminated a high-speed pursuit of respondent’s car by applying his push bumper to the rear of the vehicle, causing it to leave the road and crash. Respondent was rendered quadriplegic. He filed suit under 42 U. S. C. §1983 alleging, inter alia, the use of excessive force resulting in an unreasonable seizure under the Fourth Amendment.
Held: A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.
Points of the court's reasoning:
- The respondent placed himself and the public in danger by fleeing the police in a reckless and high speed manner in his vehicle.
- He ignored the lights and sirens of many police cars for over 10 miles.
- The police dash video showed the suspect placed numerous people in danger by the manner of his driving.
- Purely innocent citizens might have been hurt if the officer did not stop the suspect.
- The citizens would not be equally protected if the police quit chasing the suspect. The police need not have to take that chance and hope that the suspect would slow down and drive normally if they quit chasing.
- There was no way to convey to the suspect he was free to go after the officers ended the pursuit. The suspect may think the officers were just changing tactics and continue to drive in a reckless manner.
- The officer's actions to use a tactical maneuver would insure that the suspect would no longer threaten the safety of innocent citizens.
- The court refuses to create a rule that that puts within a suspect's grasp the means to escape the police just by fleeing in a reckless and dangerous manner. The Constitution assuredly does not impose this invitation to impunity-earned-by recklessness.
*It should be noted that the dash video was very important in establishing the facts on behalf of Deputy Timothy Scott.
Parker v. Gerrish, 08-1045 (1st Cir 2008)-Parker was being arrested for driving drunk. He minimally resisted by holding his hands together behind his back which was making it difficult to handcuff him. He also cursed at the officers. Ofc Gerrish shot him with a Taser. The court held that this was excessive force.
Bryan v. McPherson, 08-55622 (9th Cir.)(2009)-Bryan was stopped on traffic for not wearing his seatbelt. He was upset by other recent events. He was yelling and cursing at himself. He exited the vehicle and ignored getting back into it by the officer. He was hitting his thighs and yelling gibberish. Bryan made no threat to the officer, nor acted in an aggressive manner to him. Bryan was standing 20 feet away and made no attempt to flee. Bryan was facing away from the officer. Without warning, the officer tased Bryan. Bryan fell to the ground and damaged 4 of his teeth and received other injuries to his face.
The Court held that this was an excessive use of force. It held only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by “‘a strong government interest [that] compels the employment of such force.’”Crowell v. Kirkpatrick, 09-4100 (2nd Cir. 2010)-Protestors chained themselves to a several hundred pound barrel. The officers considered and tried several alternate means to remove the protestors. The protestors had someone at the scene call for other protestors to return to the scene, which would further complicate the situation for the officers. They warned the protestors to unchain themselves or be drive-stunned with a Taser. The officers further warned that the Taser would be very painful. The protestors refused the request. The officers drive-stunned them. The court held: "Given the totality of those circumstances, it is difficult to see how a rational factfinder could conclude that the officers’ actions were anything other than reasonable."
Glenn v. Washington County, 661 F.3d 460 (9th Cir. 2011)-Lukus Glenn was drunk and armed with a pocket knife. He held the knife to his throat and threatened to commit suicide. The police shot him 6 times with a bean bag shotgun. As he moved away from the shots, other officers shot him multiple times with their pistols, killing him.
The Court held that police are justified in using deadly force to stop someone from being a threat to the police or others. It does not include themselves. The Court further stated, "...officers could have used some reasonable level of force to try to prevent Lukus from taking a suicidal act. But we are aware of no published cases holding it reasonable to use a significant amount of force to try to stop someone from attempting suicide. Indeed, it would be odd to permit officers to use force capable of causing serious injury or death in an effort to prevent the possibility that an individual might attempt to harm only himself. We do not rule out that in some circumstances some force might be warranted to prevent suicide, but in cases like this one the “solution” could be worse than the problem. On the facts presented here, viewed favorably to the plaintiff, the officers’ use of force was not undisputably reasonable.
Brown v. Cwynar, No. 11-1948 (3rd Cir, 2012)-73 yrs old male was tased for resisting arrest. Cwynar was being disorderly. The police contacted him and tried to detain him. He got in his vehicle. The officer got in the vehicle to stop him from leaving. The officer drive-stunned him on the arm twice with little effect. The officer got Cwynar out of the vehicle and on the ground. Cwynar layed on his hands and would not let the officers handcuff him. He was being belligerent. He was given a warning that he would be tased. He did not comply. Another officer drive-stunned him in the upper back. He complied and was handcuffed. The Court held that the amount of force applied by the officer was proportional to the threat he perceived, and was therefore reasonable.
Gorman v. Warwick Township, 10-CV-6760 (US district Court for the eastern district of Pennsylvania, 2012)-Gorman was stopped and arrested for driving drunk. She refused to get in the police car after arrest. She stiffened up and activity resisted getting in the vehicle. The officer gave her several warnings that she would be Tasered if she did not get in the vehicle. She refused to cooperate. The officer gave her a drive-stun. She then cooperated. The Court held: "... that the force that was applied in this case was employed for the sole purpose of placing Plaintiff into the police car and was, we find, the minimal amount of force needed under the circumstances to accomplish this objective."
Nelson v. City of Davis, 10-16258 (9th Cir. 2012)-Nelson and his friends were at a party in an apartment complex. Officers arrived. Nelson was leaving, but was waiting for instructions from police. The officers without warning, fired a pepperball gun at Nelson striking him in the eye causing perminant damage. The court held that, "...a reasonable officer should have known that the firing of the pepperball gun towards Nelson and his friends, given the minimal governmental interests at stake, was in violation of Nelson’s clearly established Fourth Amendment right, even when that force was applied in the larger context of crowd dispersal."
Aldaba v. Pickens, 13-7034 (10th Cir. 2015)-The justification for use of force on a mentally ill person with serious and deteriorating medical condition who needs treatment differs from a criminal who is a threat to the community. In this case the officers tased a patient at a hospital multiple times and forced him to the ground and handcuffed him. The patient died. The officers were not entitled to qualified immunity.
Armstrong v. Pinehurst, No. 15-1191 (4th Cir. 2016)-Armstrong was mentally ill. He left a hospital to avoid being involuntarily committed. Police found him nearby. He sat on the ground and clung to a pole to avoid being taken into custody. There were several officers present. Officers tried to pry him from the pole. An officer then used a taser multiple times in drive stun mode with no effect. Armstrong was then forcibly pulled from the pole and handcuffed. He was held face down. Armstrong stopped breathing, and died shortly after.
The 4th Circuit Court held:
Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force. When officers encounter a minimally threatening mentally ill person, the officer is expected to de-escalate the situation and adjust the use of force downward.
Mullenix v. Luna, 14-1143 (SCOTUS, 2016)-Suspect Leija who was possibly intoxicated fled from a police officer trying to arrest him on a warrant. A high speed pursuit ensued. Leija twice called the police and told them that he had a gun and will shoot the officers if they did not abandon the pursuit. An officer set up road spikes. Tpr Mullenix armed himself with a rifle and took up position on an overpass above the officer with the spikes. He decided to try and shoot Leija's vehicle engine to disable it. He fired multiple shots at Leija hitting him 4 times. Leija's vehicle hit the spikes, crashed, and rolled. Mullenix was sued for Excessive Force. The lower courts refused to grant qualified immunity to Mullenix. The court held: Leija was engaged in a high speed pursuit, he was intoxicated, he twice threatened to shoot officers, he was speeding toward an officer that was manning the road spikes putting his life in danger. Mullenix was entitled to qualified immunity in shooting Leija.
Perea v. Baca, No. 14-2214 (10th Cir. 2016)-Officers stopped Perea for running a stop sign on his bike. They gave Perea no warning or commands before chasing him on foot and pushing him off of his bike. He resisted. He was shot with Taser probes. The officer followed with 9 more shocks in "stun mode". Perea ultimately died. The court held that the officers used excessive force:
1. The use of the Taser 10 times in two minutes was disproportional to the seriousness of Perea's crime.
2. Perea did not pose a threat to anyone which would justify such use of force.
3. Perea’s resistance (thrashing and swinging a crucifix) did not justify the officers’ severe response.
County of Los Angeles v. Mendez, No. 16-369 (SCOTUS, 2017)-Deputies with the Los Angeles County Sheriff’s Dept. went to a residence to look for a reportedly armed and dangerous parolee. The deputies were briefed to the incident that Mendez and Garcia lived in a shack on the property. Without a warrant or warning, the deputies entered the shack. Mendez and Garcia, who was pregnant, were startled from sleep when the deputies entered. Mendez was holding a BB gun he used to kill pests. The deputies shot both the subjects seriously injuring them. Both subjects sued the deputies for excessive force. The lower court ruled that the deputies’ actions were reasonable under Graham v. Connor. The court, however, applied the 9th Circuit’s Provocation Rule under which the court held that the deputies’ actions were unreasonable. The 9th Circuit upheld this ruling. The Supreme Court issued a writ of certiorari.
The Provocation Rule makes an officer’s otherwise reasonable use of force unreasonable if, (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation.
The Supreme Court held unanimously that if there is no excessive force claim under Graham there is no excessive force claim at all. The Provocation Rule is an unwarranted and illogical expansion of Graham. The 9th Circuit's ruling was vacated.