Legal Issues and Case Law

Fourth Amendment, excessive force, qualified immunity
The Graham factors and the use of deadly force
Fourteenth Amendment deprivation of a familial relationship
A constitutional violation prerequisite for Monell liability
Battery and negligent wrongful death actions under Nevada law
 

Rule: Whether deadly force used by a police officer is constitutionally lawful depends upon whether it was objectively reasonable for the officer to believe that the amount of force employed was required by the situation. A reasonable, even though mistaken, belief that deadly force is necessary under the circumstances precludes any civil liability on the part of a police officer. An officers’ actions in killing an uncooperative suspect must “shock the conscious” for Monell (employing entity) relief to be available. A Nevada state action for battery and negligent wrongful death under state law applies only when the officers acted in bad faith.

Facts: Around midnight on Oct. 27, 2018, several people called 911 to report a man walking around a Las Vegas residential neighborhood carrying what appeared to be a “slim jim,” “long stick,” or “machete.” The man, later identified as Lloyd Gerald Napouk, was seen talking to himself, rising his fist at parked cars, pointing the object he was carrying at houses, and going into backyards and peering into windows of some of the residences. Two separate Las Vegas Metropolitan Police Department officers responded. After talking with one of the people who called 911, the officers found Napouk, wearing headphones, on an adjacent street as he walked out from between houses. It appeared to the officers that he was carrying a machete as the lights in the area reflected off what appeared to be a metallic blade. The officers exited their patrol cars with guns drawn, asked him what he was carrying, and ordered him to put it on the ground. Napouk ignored them.  

As the officers used their patrol cars as a buffer between him and themselves, Napouk followed the officers around the cars while waiving the weapon in the air. Warned that he would be shot if he didn’t drop the weapon, Napouk told the officers to go ahead and shoot him. One of the officers radioed for a beanbag shotgun and a canine unit, neither of which arrived in time to be of any use. As the officers repeatedly ordered Napouk to drop his weapon, he continued to ignore them while moving more quickly along the side of the patrol car toward the officers, telling them twice to “get out of here.” One of the officers retreated around the other side of the car as he repeated his commands for Napouk to drop the weapon. The other officer followed Napouk around the car as he also repeatedly ordered him to drop the weapon. As both officers told Napouk that they were going to shoot him, Napouk responded, “you have to” and “I know.” Told by one of the officers that if he took one more step toward them, “I will shoot you,” Napouk again responded, “I know.” After more dancing around the vehicles with Napouk following the retreating officers, one of the officers told Napouk again, “one more step and you’re dead.” Napouk responded once more, “I know,” and continued advancing. When Napouk was about nine feet away, both officers shot him multiple times. CPR was unsuccessful and Napouk died at the scene. The total time between the original confrontation and the eventual shooting was about five minutes.  

After the shooting, it was discovered that Napouk was brandishing a plastic toy fashioned to appear as a blade. Napouk’s toxicology report revealed that he had been high on methamphetamine. Napouk’s parents subsequently sued the officers along with the department in federal court alleging (1) excessive force in violation of the Fourth Amendment, (2) deprivation of familial relations in violation of the Fourteenth Amendment, (3) several municipal liability claims based on Monell v. Department of Social Services (1978) 436 U.S. 658 (i.e., failure to train), and (4) battery/wrongful death and negligence/wrongful death under Nevada law.  

The district court granted summary judgment for the defendant officers and the department, determining primarily that the officers’ use of force was reasonable as a matter of law. The plaintiffs appealed.  

Held: The Ninth Circuit Court of Appeals, in a two-to-one decision, affirmed. On appeal, the court discussed four issues:  

(1) Fourth Amendment Excessive Force and Qualified Immunity: The rules are well-settled: Qualified immunity protects government officials from (a civil) suit unless “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” (Italics added: District of Columbia v. Wesby (2018) 583 U.S. 48, 62-63). The issue under the first prong is “whether ‘the use of force is contrary to the Fourth Amendment’s prohibition against unreasonable seizures.’” (Wilkins v. City of Oakland (9^th Cir. 2003) 350 F.3rd 949, 954). “Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” (Graham v. Connor (1989) 490 U.S. 386, 396.)  

In deciding this issue, the courts are to “look at ‘whether it would be objectively reasonable for the officer to believe that the amount of force employed was required by the situation he confronted.’” Also, “[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 lastly, “[t]he calculus of reasonableness must embody allowance 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., at pgs. 396-397.) “The Supreme Court (in Graham) has provided three factors for determining the strength of the government's interest: ‘[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 he is actively resisting arrest or attempting to evade arrest by flight.’” (Id., at pg. 396; known as the “Graham factors.”)  

(1a) The Second Graham Factor: The Ninth Circuit has held that the “most important” of these factors is the second one; i.e., “whether the suspect posed an immediate threat to the safety of the officers or others.” (See Lal v. California (9th Cir. 2014) 746 F.3rd 1112, 1117.) Using the above-listed standards, the Ninth Circuit first rejected the plaintiffs’ argument that the officers in this case could not have reasonably concluded that the object Napouk was brandishing was a dangerous weapon. Per the court, “(N)o rational jury could find the officers’ mistake unreasonable.” In reaching this conclusion, the court noted the following rule: “Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of an immediate threat, and in those situations, courts will not hold that they have violated the Constitution.” (Estate of Strickland v. Nevada County (9th Cir. 2023) 69 F.4th 614, 621.)  

In this case, witnesses reported to the officers that the object being carried by Napouk appeared to be “a slim jim, long stick, or machete.” When the officers first confronted Napouk, the object he was brandishing appeared to have a metal blade because of the way light reflected off of it. The object itself was later determined to be 22 inches long, made of layers of dark gray plastic adhered together and square at the end, with a handle made of wire and yellow rope covered in black tape. It turned out to be no more than a “homemade plastic sword.” But when Napouk was first contacted by the officers, it was impossible to differentiate it from an actual sword or machete. With this established, the court noted that at the moment they shot him, Napouk — still carrying and waving around this apparent machete  —was within 10 feet of them, had been ignoring their commands for about five minutes, and had moved toward them several times, “causing (the officers) to retreat with increasing frequency as the encounter went on.”  

The court further noted that it is irrelevant whether the deceased was approaching the officers “at variable speeds,” or at a “slow pace,” where it was undisputed that he was within nine or 10 feet of the officers while “deliberately advancing” on them “with what they reasonably perceived to be a long, bladed weapon in his hand” until both officers shot him. Next, the  court held that it is irrelevant whether Napouk made any “indirect verbal threats,” or became “increasingly irritated.” What was relevant was that “Napouk was behaving erratically, holding what the officers reasonably perceived to be a lethal weapon, repeatedly ignoring their commands to stop and to drop it, and repeatedly deliberately advancing toward them with the weapon in his hand.”  

The court also rejected the plaintiffs’ claim that the officers “created their own sense of urgency and unnecessary haste.” To the contrary, the officers “spent more than five minutes attempting to engage with him and convince him to drop his weapon.” Next, plaintiffs argued that the officers had a legal duty to retreat instead of shooting Napouk. The court rejected this argument, declining to create a rule by which officers have a duty to indefinitely retreat when faced with an immediate threat. Per the court; “such a duty may be inconsistent with (a) police officers’ duty to the public.” (See Reed v. Hoy (9th Cir. 1989) 909 F.2nd 324.)  

(1b) The First Graham Factor: As to the first Graham factor (i.e., “the severity of the crime at issue”), the  ourt held that the “assault with a deadly weapon” offense that the officers reasonably believed Napouk was committing was “a sufficiently serious and dangerous crime,” thus supporting a finding that this factor applied.                                      

(1c) The Third Graham Factor: The court also found the third Graham factor (that the decedent was “actively resisting arrest or attempting to evade arrest by flight”) also applied, as he “repeatedly failed to comply with the officers’ orders to drop his weapon and to stop moving, and advanced toward the officers” as he brandished the weapon. The court noted that it was irrelevant that Napouk was never actually told he was subject to arrest. The fact that he actively resisted the officers’ orders was sufficient to support a finding that the third Graham factor applied.  

(1d) The Graham Factors in General: The court also rejected the plaintiffs’ arguments that Napouk’s mental issues outweighed the Graham factors. While relevant to a “totality of the circumstances” consideration, the court held that even if applicable, a defendant’s mental issues are insufficient to overcome an adverse “Grahan factor” conclusion. The court noted that they “have refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.” (Citing Bryan v. MacPherson (9th Cir. 2010) 630 F.3rd 805, 829.)  

Second, the court rejected the plaintiffs’ argument that because of Napouk’s mental state, the officers should have made a “greater effort to take control of the situation through less intrusive means.” As stated in prior cases, officers “need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct we identify as reasonable.” This rule applies equally to situations where the target of the officers’ actions is one with mental issues.  

And lastly, the fact that Napouk was wearing headphones was not an issue in that he obviously heard the officers’ commands, responding to them with comments like, “You have to,” and “I know.”  

Based on the above, the court concluded that the officers’ use of force was reasonable as a matter of law. Further, even if the officers’ actions did violate the Fourth Amendment, they would still be entitled to qualified immunity because they did not violate “clearly established law,” as there is no clearly established precedent that would have foretold the officers their actions might have been unreasonable.  

(2) Fourteenth Amendment Deprivation of a Familial Relationship: In the Ninth Circuit, the parents of one killed by the police — whatever age — have the right to assert a substantive due process claim for the deprivation of the companionship of their child. (Sinclair v. City of Seattle (9th Cir. 2023) 61 F.4th 674, 678-679.) The U.S. Supreme Court, however, has never considered this issue as far as it might apply to an adult decedent. Napouk was 44 years old. One concurring justice in this case [see below] is of the contrary opinion, arguing that the rules on a familial relationship do not apply when the decedent is an adult. Either way, for such a lawsuit to be sustained, the officers’ action must be found to “shock the conscience.” To shock the conscience, the officers’ purpose must have been “to cause harm unrelated to the legitimate object of arrest.” The force used in this case having been found to be reasonable, the court held that the plaintiffs failed to meet this standard.

(3) Municipal Liability for an Unconstitutional Custom, Practice or Policy: Under Monell v. Department of Social Services of the City of New York (1978) 436 U.S. 658, a municipality may be held liable for constitutional torts committed by its employees, but only if those torts were committed pursuant to the municipality’s policies or customs. A municipality is liable only if (1) “the [plaintiff] possessed a constitutional right of which he was deprived;” (2) “the municipality had a policy;” (3) “this policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right;” and (4) “the policy is the ‘moving force behind the constitutional violation.’” (See Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F.3rd 831, 835; and Henry v. County of Shasta (9th Cir. 1997) 132 F.3rd 512, 517.)  

The plaintiff argued here that the city of Las Vegas was civilly liable for Napouk’s death. The court disagreed, holding that because there was no constitutional violation, the district court’s granting of summary judgment on the Monell claims was warranted because a constitutional violation is a necessary prerequisite for Monell liability. (Hayes v. County of San Diego (9th Cir. 2013) 736 F.3rd 1223). Because the court held here that there was no constitutional violation, Monell relief was also unavailable.  

(4) Battery and Negligent Wrongful Death Actions under Nevada Law: The plaintiffs alleged battery and negligence claims under Nevada state law. Nevada, however, has a state law that precludes civil suits against state officers whenever an alleged act or omission relates to a “discretionary function,” excepting only decisions made in “bad faith.” (See Nev. Rev. Stat. § 41.032.) In this case, the court held that “the officers’ actions fell within the discretionary function as it has been applied by Nevada's courts.” The district court, therefore, properly granted summary judgment on the state law claims.

Conclusion: The majority of the court held that the officers’ actions were objectively reasonable, and therefore not in violation of Napouk’s Fourth Amendment rights (or, in the alternative, that such rights were not “clearly established.”) The trial court, therefore, “properly granted summary judgment” as to each of the allegations.

Author's Notes: On the issue of the Fourteenth Amendment’s “familial relationship” (supporting the right of parents in the civil recovery of damages for the death of a child), a concurring opinion in this decision expressed the belief that such a theory does not apply when the decedent is an adult, as Napouk. While the majority opinion assumed that this legal theory does apply to the loss of an adult child, this is ultimately an issue that must be resolved someday by the U.S. Supreme Court. It certainly is not resolved here.  

There is also a dissenting opinion in this case that provides some interesting insight on the issue of the reasonableness of the officers’ actions in shooting Napouk. Noting that “Napouk never verbally threatened the officers, rushed at them, or brandished or pointed the object in their direction, (and that) Napouk’s demeanor was calm, his gait and movements were slow and deliberate,” the dissenting justice submitted that whether the officers’ use of deadly force under these circumstances was constitutionally reasonable is an issue that needs to be decided by a civil jury.  

Although I’m not likely making myself very popular amongst a lot of law enforcement officers reading this brief (“Well, you weren’t there!”), as a former San Diego Police Department officer (albeit during a less violent era, the mid-1970s), and after a 30-year-career as a prosecutor, I have to say that I don’t disagree with the dissent.  

While I recognize the difficulty inherent in an officer having to make such life-and-death decisions in the heat of an ongoing confrontation, I see some room for debate in this case on the issue of whether the officers opted for deadly force a bit too soon. In his 13-page dissenting opinion, Justice Gabriel P. Sanchez argues that shooting Napouk was not necessary in this case, or that at the very least, a civil jury should have been allowed to make that decision. Justice Sanchez notes, for instance, that at least one of the officers had readily available in his police vehicle a beanbag shotgun but never chose to use it. Both officers were carrying Tasers and pepper spray, neither of which were ever used. One of the officers had requested a cover unit respond to the scene with a beanbag shotgun and police dog, although the court doesn’t tell us whether there was any response.  

The dissent also noted that there was substantial evidence supporting the argument that the officers could have strategically repositioned themselves or withdrawn to a safer distance from the relatively slow-moving Napouk before deciding whether it was necessary to shoot him. In short, Justice Sanchez makes the argument that alternatives to shooting Napouk were available, a conclusion with which I tend to agree. At the very least, I think the officers were pushing the civil liability envelope a bit by killing Napouk under these circumstances. A different three-judge appellate panel might have easily gone the other way in this case.