The use of deadly force and qualified immunity from civil liability 

• Civil liability and qualified immunity 
• The use of deadly force absent prior case authority putting officers on notice 
• Fourteenth Amendment substantive due process and familial relationships 

The lack of prior case authority determining that the use of deadly force in a potentially dangerous situation is unconstitutional will generally provide officers with qualified immunity from civil liability.  

Where the issue is a child’s Fourteenth Amendment substantive due process deprivation of his or her interest in the companionship of a parent, only official conduct that “shocks the conscience” is sufficient to provide a remedy. Also, it must be shown that actual deliberation before the force was used was practical under the circumstances. 

Two Lyon County, Nevada, law enforcement officers responded to a 911 call related to a domestic violence incident at a private residence. The initial call did not request any emergency medical care nor report the involvement of any weapons. Upon arrival, the officers knocked on the front door and announced their presence. Two minor children—both described as “distressed”—came out of the house and spoke with the officers in the front yard. They told the officers that their parents were fighting and that their mother needed an ambulance. A medic was called to respond to the scene. While awaiting the arrival of an ambulance, the children told the officers that there were no weapons in the house other than a BB gun, but that their father was “throwing (their mother) around.”  

Leaving the children in the front yard, the officers again approached the front door, announced their presence, and, with one of the officers drawing his weapon, made entry into the house. Robert Anderson—from down an adjoining hallway and out of view—shouted; “F*** you punks.” Following the direction of Anderson’s voice, the officers moved toward the hallway just off the kitchen. Anderson—5 foot, 8 inches tall and 185 pounds (smaller than either of the two officers)—was observed standing at the far end of the hallway. It was noted at this time that he was unarmed and shirtless, with nothing in either his waistband or his hands. The second officer drew his weapon about this time.  

With both officers still in the kitchen at that opposite end of the hallway, Anderson was ordered to get on the ground. Ignoring the officers’ commands, he suddenly ran toward them. Both officers fired their weapons (three and two shots), hitting him in the torso with all five shots. Per later testimony (as recorded on the officers’ bodycams and as reported in the dissenting opinion), one officer fired the first shot from three to five feet as Anderson reached their end of the hallway. He fired the second shot at near point-blank range as Anderson passed in front of him. There was some indication that Anderson made a grab at the first officer’s gun as he passed. The third shot was fired at Anderson’s back as Anderson fell forward into the kitchen.  

The other officer fired a single shot at Anderson after the first officer had fired two shots and after Anderson had entered the kitchen. It was unexplained when the second officer fired his second shot. Anderson died at the scene. Anderson’s wife and children later sued the officers and Lyon County in federal court, alleging (1) a violation of the Fourth Amendment for using excessive force, and (2) the Fourteenth Amendment (substantive due process) for interfering with a familial relationship with his wife and children.  

The federal district (trial) court granted the civil defendants’ (the officers’) motion for summary judgment, ruling that the officers and the county were entitled to qualified immunity. The plaintiffs appealed. 

The Ninth Circuit Court of Appeal, in a 2-to-1 decision, affirmed, ruling that the officers were indeed entitled to qualified immunity from civil liability. Also, a unanimous court ruled that the officers, as a matter of law, did not violate the plaintiffs’ Fourteenth Amendment right to a familial relationship. 

The Fourth Amendment and Qualified Immunity 

The court first discussed the requirements of a “qualified immunity” finding. “Qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.)  

The reasoning behind this rule is because the courts have found it unfair to hold law enforcement officers to a set of rules for which they had no forewarning. In considering this issue, the court noted that “(a) right is clearly established when it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’”  

In analyzing a qualified immunity case, a court must consider in the conjunctive a two-step analysis: Government officials are entitled to qualified immunity from civil liability “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.) However, in considering this issue, the courts commonly just skip to the second factor, i.e., whether the unlawfulness of the officers’ conduct was “clearly established at the time.”  

In this case, the court exercised its discretion to go straight to the second factor. In so doing, the majority determined that “no clearly established (prior case) law shows that the officers’ conduct was unconstitutional.” The court first noted the unique circumstances of this case. Even though unarmed, Anderson used aggressive language with the officers, ignored an order from the officers to go to the floor, and then, in a small, confined space, rushed toward the officers. Additionally, the officers were responding to an active domestic violence situation, lacked the benefit of having time to fully assess the circumstances, and had to make split-second decisions as they were being charged. The court compared these circumstances to the facts of prior “use of deadly force” cases, differentiating each of them on the facts. The majority of the Ninth Circuit panel concluded that there were no prior case decisions that could be used to put these officers on notice that the force they used in shooting Anderson might violate the Fourth Amendment. As such, two of the three justices held that the officers were entitled to qualified immunity. (But see “Note,” below.)  

Fourteenth Amendment Substantive Due Process and a Familial Relationship 

As for the allegation that the officers violated the Fourteenth Amendment substantive due process clause by depriving Anderson’s children of a liberty interest in the companionship of their father (the court doesn’t mention the wife’s interest), the court noted that the plaintiffs had proof problems. Specifically: “Only official conduct that ‘shocks the conscience’ is cognizable as a due process violation.” (Italics added; Sinclair v. City of Seattle680; quoting Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1137.)  Liability on these grounds requires proof that “actual deliberation (was) practical” under the circumstances.  (Moreland v. Las Vegas Metro. Police Dep’t (9th Cir. 1998) 159 F.3rd 365, 372; quoting County of Sacramento v. Lewis (1998) 523 U.S. 833, 851.)  “[W]here a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.”  The Court held here that the circumstances did not allow for any “actual deliberation” on the part of the officers, nor did the officers act “with a purpose to harm unrelated to legitimate law enforcement objectives.”  The district court’s ruling on this issue was therefore unanimously upheld by the Court.; quoting Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1137.) Liability on these grounds requires proof that “actual deliberation (was) practical” under the circumstances. (Moreland v. Las Vegas Metro. Police Dept (9th Cir. 1998) 159 F.3rd 365, 372; quoting County of Sacramento v. Lewis (1998) 523 U.S. 833, 851.) “[W]here a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.”  

The court here held that the circumstances did not allow for any “actual deliberation” on the part of the officers, nor did the officers act “with a purpose to harm unrelated to legitimate law enforcement objectives.” The district court’s ruling on this issue was therefore unanimously upheld. 

Note 

The majority decision in this case—in my never-to-be-so humble opinion—is simply wrong. The majority held that using deadly force under these circumstances was “reasonable,” – “reasonableness” being the constitutional requirement. (See Graham v. Connor (1989) 490 U.S. 386.)  

I find this hard to accept, and there’s a well-reasoned 26-page dissent, authored by Associate Justice Marsha S. Berzon, that agrees with me. I totally agree that the nature of the overall situation—a domestic violence call where emotions are running high—called for increased caution. Even so, shooting and killing Robert Anderson under the circumstances of this case was clearly unreasonable.  

There comes a point where despite the lack of any prior case decisions putting the officers on notice, plain old common sense needs to dictate how an officer should respond.  

For instance, had Anderson merely flipped the officers off, would they have been reasonably justified in shooting him despite the lack of any prior case authority saying that it would be unconstitutional to do so? Where do you draw the line between when any reasonable officer would, or would not, have understood that what he is doing violates a person’s right not to be the victim of excessive force? (And don’t tell me that I would have had to have been in these officers’ shoes. I’ve been there, and more than once.)  

It is agreed, as the court pointed out, that things were occurring at a rapid pace and in a confined space, involving an out-of-control domestic violence suspect who was known to have already injured his wife. Yet I don’t understand how these circumstances would lead two well-trained officers—presumably trained in physically subduing (in “hand-to-hand” combat, so to speak) a resisting, yet unarmed, outnumbered suspect, when both officers are equipped with Tasers, pepper spray and nightsticks, facing a lone, unarmed, domestic violence suspect who, as noted by the dissent was physically smaller than both officers—to believe that it was reasonable to use deadly force by shooting the man.  

Assuming, again, that the officers were properly trained, they should have been able to physically restrain him and take him into custody without having to kill him. Shooting and killing an outnumbered, unarmed man—despite his physical resistance—is, in my opinion, hard to justify in just about any circumstance. Also, note that this is a Nevada case. Had this incident occurred in California, the rules would have been different. In California, by statute (P.C. § 835a(a)(2), effective January 1, 2020 (AB 392)), “peace officers (may) use deadly force only when necessary, in defense of human life...and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.” (Italics added)  

This amendment to California’s penal code has the effect of adding an element of “necessity” to the already existing “reasonableness” requirement for using deadly force, presumably raising the bar a notch in evaluating deadly force situations. So, whether shooting and killing Anderson was “reasonable,” had it occurred in California, we’d be asking ourselves whether it was also “necessary.”  

Again, I don’t believe it was. There were just too many alternative methods of subduing and taking Anderson into custody that were available to the officers without putting themselves at any additional, measurable, risk. So, with that, I’m expecting your cards and letters in response. 

The majority decision in this case—in my never-to-be-so humble opinion—is simply wrong. The majority held that using deadly force under these circumstances was “reasonable,” – “reasonableness” being the constitutional requirement. (See Graham v. Connor (1989) 490 U.S. 386.)  

I find this hard to accept, and there’s a well-reasoned 26-page dissent, authored by Associate Justice Marsha S. Berzon, that agrees with me. I totally agree that the nature of the overall situation—a domestic violence call where emotions are running high—called for increased caution. Even so, shooting and killing Robert Anderson under the circumstances of this case was clearly unreasonable.  

There comes a point where despite the lack of any prior case decisions putting the officers on notice, plain old common sense needs to dictate how an officer should respond.  

For instance, had Anderson merely flipped the officers off, would they have been reasonably justified in shooting him despite the lack of any prior case authority saying that it would be unconstitutional to do so? Where do you draw the line between when any reasonable officer would, or would not, have understood that what he is doing violates a person’s right not to be the victim of excessive force? (And don’t tell me that I would have had to have been in these officers’ shoes. I’ve been there, and more than once.)  

It is agreed, as the court pointed out, that things were occurring at a rapid pace and in a confined space, involving an out-of-control domestic violence suspect who was known to have already injured his wife. Yet I don’t understand how these circumstances would lead two well-trained officers—presumably trained in physically subduing (in “hand-to-hand” combat, so to speak) a resisting, yet unarmed, outnumbered suspect, when both officers are equipped with Tasers, pepper spray and nightsticks, facing a lone, unarmed, domestic violence suspect who, as noted by the dissent was physically smaller than both officers—to believe that it was reasonable to use deadly force by shooting the man.  

Assuming, again, that the officers were properly trained, they should have been able to physically restrain him and take him into custody without having to kill him. Shooting and killing an outnumbered, unarmed man—despite his physical resistance—is, in my opinion, hard to justify in just about any circumstance. Also, note that this is a Nevada case. Had this incident occurred in California, the rules would have been different. In California, by statute (P.C. § 835a(a)(2), effective January 1, 2020 (AB 392)), “peace officers (may) use deadly force only when necessary, in defense of human life...and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.” (Italics added)  

This amendment to California’s penal code has the effect of adding an element of “necessity” to the already existing “reasonableness” requirement for using deadly force, presumably raising the bar a notch in evaluating deadly force situations. So, whether shooting and killing Anderson was “reasonable,” had it occurred in California, we’d be asking ourselves whether it was also “necessary.”  

Again, I don’t believe it was. There were just too many alternative methods of subduing and taking Anderson into custody that were available to the officers without putting themselves at any additional, measurable, risk. So, with that, I’m expecting your cards and letters in response.