By Robert Phillips  

Deputy District Attorney (ret.) 

Legal Issues and Case Citation 

• The Fourth Amendment and the use of deadly force 

• Constitutionality of deadly force used in a high-speed chase 

• Municipal liability pursuant to Monell v. Department of Social Services 

Rule: The use of deadly force to end a high-speed pursuit after all else has failed, and where the suspect is attempting to continue the chase, is reasonable under the Fourth Amendment. Where no constitutional violation has been committed by an officer’s use of deadly force, the employing municipality is also immune from civil liability. 

Facts: Joseph Williams, the plaintiff in this lawsuit, stole alcohol from a gas station in the city of Sparks, Nev., at about 12:10 a.m. on May 5, 2020, and vandalized a vehicle in the parking lot for good measure. Two Sparks patrol officers responded separately to the gas station attendant’s 911 call. Upon the first officer’s arrival, Williams took off in his truck with the officer in hot pursuit. Joined by other officers, they chased Williams code 3 all over the county while attempting several unsuccessful pursuit intervention (PIT) maneuvers, as well as spike strips laid across the road.  

In the process, Williams ignored speed limits, stop signs and traffic lights. Even when cornered in a dead-end street, where officers spent 10 minutes attempting to talk him out of his truck, Williams eventually escaped by driving through a chain-link fence and starting the pursuit again. Finally, 42 minutes into the chase, and with sparks flying from a flat tire caused by a spike strip, officers finally boxed Williams in between three patrol vehicles, which were actually pressed against the sides and front of his truck.  

With the truck’s engine making “a loud, continuous noise and a cloud of dirt and debris form(ing) near the back of the truck,” five officers surrounded Williams, yelling at him to “stop the car!” When he failed to do so, the officers then began shooting “dozens of rounds into the cabin of the truck” from three sides, continuing the shooting for approximately 14 seconds, as Williams’ engine continued making a loud noise.  

Williams was struck and injured by several bullets. After Williams still refused to get out of his truck, one of the officers fired a “40-millimeter less-lethal foam launcher” at the truck’s rear window, unsuccessfully attempting to break out the window. When one of the officers moved his vehicle away from the truck’s passenger door, Williams got out and after “exchang(ing) words with the officers,” laid down on the ground in apparent submission.  

Williams’ wounds were immediately checked by the officers and responding paramedics transported him to the hospital. Williams sued the officers and the city of Sparks in federal court, pursuant to 42 U.S.C. §1983.  

Williams asserted seven claims against the civil defendants: (1) excessive force; (2) denial of medical care (an allegation he later withdrew); (3) municipal liability for ratification; (4) municipal liability for inadequate training; (5) municipal liability for unconstitutional custom, practice or policy; (6) battery; and (7) negligence. The civil defendants’ motion for summary judgment seeking dismissal was denied by the district (trial) court, except as to the seventh claim, negligence, which the court dismissed. The police officers and the city of Sparks appealed. 

Held: A unanimous Ninth Circuit Court of Appeals reversed. Noting that appellate review extends to any issue of law, including the materiality of the disputed issues of fact, the court held that the district court erred in denying the civil defendants’ motion for summary judgment as to each of the remaining five allegations (the “denial of medical care allegation” had been withdrawn and the negligence allegation dismissed.)  

The court held:  

(1) Excessive Force: On this issue, the basic law is well settled. “A police officer’s application of deadly force to restrain a subject’s movements ‘is a seizure subject to the reasonableness requirement of the Fourth Amendment.’” (Tennessee v. Garner (1985) 471 U.S. 1, 7.) “Accordingly, any such use of deadly force must be ‘objectively reasonable.’” (Graham v. Connor (1989) 490 U.S. 386, 397.)  

The Supreme Court’s decision in Graham identified several factors to consider when evaluating the strength of the government’s interest in the force used: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Although several of these factors are relevant in this case, the most important Graham factor is whether the suspect posed an immediate threat to anyone’s safety. (Nehad v. Browder (9^th 2019) 929 F.3^rd 1125, 1132.)  

These factors are not exclusive, however. A court must also “examine the totality of the circumstances,” which includes the availability of less intrusive force, whether the target of the force was warned, and whether the officers should have known that the target of the force was mentally disturbed. (Estate of Lopez v. Gelhaus (9^th Cir. 2017) 871 F.3^rd 998, 1006.)  

It is also a rule that “officers need not employ the least intrusive means available, so long as they act within a range of reasonable conduct.” Lastly, “[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.” And it must be remembered 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.” (Kisela v. Hughes (2018) 584 U.S. 100, 103.)  

With these rules in mind, the court addressed Williams’ claim that the officers’ use of deadly force was unreasonable in that when they started shooting at him, “he was not attempting to accelerate” and escape. However, the body camera recordings from four of the officers, as well as the dash camera recordings from two of the police vehicles, showed that he was in fact accelerating, as evidence by “the thick cloud that formed,” the visible turning of the wheels on Williams’ truck, and the noise coming from the truck’s engine.  

The bottom line is that the pursuit was not over. As noted by the court: “Williams was clearly attempting to accelerate – and therefore attempting to flee – when the officers opened fire.” This brought the court to discuss whether this fact alone – a suspect’s attempt to reinitiate a dangerous high-speed chase – justifies the use of deadly force.  

Citing the U.S. Supreme Court case of Plumhoff v. Rickard (2014) 572 U.S. 765, 771, the court held that it does. Plumhoff involved a police chase that “exceeded 100 miles per hour and lasted over five minutes,” ending when the defendant’s vehicle collided with a police cruiser. As the defendant attempted to reinitiate the chase by “obviously pushing down on the accelerator because the car’s wheels were spinning,” the high court held that the officers’ use of deadly force by shooting into the vehicle was reasonable. Under the circumstances such as occurred in Plumhoff, as well as the instant case, the defendants (Plumhoff and Williams) posed an immediate threat to the safety of others. “In line with the Supreme Court’s reasoning in Plumhoff, we hold that Williams – taking into account the duration, speed, and other hazards of his flight, as well as his clear intent to flee – ‘posed a grave public safety risk’ and that ‘the police acted reasonably in using deadly force to end that risk.’” (Citing Plumhoff, at page 777.) The officers here, therefore, as in Plumhoff, were justified in using deadly force to end that threat.  

The court further held that the number and duration of the rounds fired was not excessive under these circumstances. Until Williams abandoned his attempt to flee, the officers were constitutionally justified in continuing to fire. Here, that took 14 seconds. “(I)f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Based on the above, the court held that the officers were entitled to qualified immunity from civil liability.  

(2) Municipal Liability and Battery: In Monell v. Department of Social Services (1978) 436 U.S. 658, 690-695, the U.S. Supreme Court held that municipalities can be liable for their employees’ infringement of constitutional rights under certain circumstances. “In particular, municipalities may be liable under (42 U.S.C.) §1983 for constitutional injuries pursuant to (1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” (Horton ex rel. Horton v. City of Santa Maria (9^th Cir. 2019) 915 F.3^rd 592, 602-603.)  

However, “(a) plaintiff must...show ‘deliberate action attributable to the municipality [that] directly caused a deprivation of federal rights.’” (Id. at 603.) Although it is a rule that “qualified immunity” is not available to a municipality, as it is to the police officers it employs (See Horton ex rel. Horton v. City of Santa Maria (9^th Cir. 2019) 915 F.3^rd 592, 603.), it has also been held that an appellate court may exercise “pendent jurisdiction” and “review an otherwise non-appealable ruling when it is ‘inextricably intertwined’ with...[an] order properly before us.” (Doe v. Regents of Univ. of Cal. (9^th Cir. 2018) 891 F.3^rd 1147, 1154.) (By the way, “pendent jurisdiction” is “a legal doctrine that allows a federal court to hear state law claims that are related to a federal law claim in the same case. This can happen when a federal court already has jurisdiction over one claim and the other claims are based on the same facts. I had to look it up.)  

The court here decided to exercise pendent jurisdiction over Williams’ Monell claims in this case because they are “inextricably intertwined” with the excessive force claim and qualified immunity defense. The court held that Williams’ Monell claims failed as a matter of law because the officers’ use of force was constitutionally justifiable.  

The court used the same “pendent jurisdiction” reasoning to dismiss Williams’ battery allegation, ruling that “(u)nder Nevada law, police officers ‘are privileged to use that amount of force which reasonably appears necessary,’ and are liable only to the extent they use more force than reasonably necessary.” Again, finding that any battery committed in this case was constitutionally justifiable, the court reversed the trial court’s denial of summary judgment on this issue. 

Author Notes: The court held here that there was no civil liability on the officers’ or the city’s part for using deadly force under the circumstances. But note that the circumstances here involved a 42-minute chase, when all other attempts to stop the suspect failed, and where the suspect was intent on breaking away again and continuing the chase.  

Do not take this decision to mean that the fact of a high-speed chase alone will allow you to use deadly force to stop it. In A. D. v. State of California Highway Patrol (9^th Cir. 2013) 712 F.3^rd 446, for instance, the Ninth Circuit upheld a jury’s finding of an officer’s civil liability when he killed the plaintiff’s mother after the chase was over, when the plaintiff’s mother had been surrounded, and there was no immediate danger to others.  

Also, in today’s political and cultural climate, it is a fact of life that law enforcement officers are being charged criminally in cases where at one time the use of deadly force might have been excused both civilly and criminally.  

Lastly, if you’ve read my comments on prior “use of deadly force” cases I’ve briefed, you know that I’m of the belief that officers today are often too quick to use deadly force when there are other reasonable alternatives, even though it might subject the involved officer(s) to some potential danger. While I certainly want you to return home to your loved ones at the end of your shift, I think sometimes we fail to use the training we’ve received to subdue suspects without having to kill them. So don’t read too much into this case. Your use of deadly force must be limited to those circumstances when it is absolutely necessary.