An officer is not required to take the potentially dangerous route of failing to shoot simply because there is reason to believe that a weapon pointed at the officer by a suspect may not be real. 

• Fourth Amendment seizure by shooting a suspect 
• Use of deadly force by law enforcement officers 
• Brandishing a replica firearm and an officer’s use of deadly force in response 

When a suspect points a firearm at an officer, the Constitution entitles the officer to respond with deadly force. The officer, however, need only have “probable cause” to believe that the weapon used by the suspect was, in fact, a real firearm. The officer is entitled to be reasonably mistaken about the nature of the threat. The fact that the weapon used appeared to be nothing more than a replica firearm does not make it unreasonable for the officer to assume otherwise.  

Gabriel Strickland was well known to the Nevada County Sheriff’s Office as a homeless man with serious mental issues, including bipolar disorder, PTSD, and anxiety disorder. Since at least 2016, he’d been in and out of custody and undergone a number of mental evaluations.  

On Dec. 26, 2019, he was arrested again (unknown for what) and incarcerated at a correctional facility in Nevada City, Ca. At that time, Wellpath Management, Inc., a contractor providing medical services at the facility, performed a physical and mental intake assessment, determining that Strickland was uncooperative, angry, and had active mental health issues. It was further determined that he needed an urgent and more complete mental health evaluation. However, he was released after four days by the Nevada County Superior Court following a pretrial release hearing without further mental health evaluation.  

Two days later, on Jan. 1, 2020, the Nevada County Regional Dispatch received reports of a man walking on a residential road near a neighboring town –­­ Grass Valley – ­ with “what appeared to be a shotgun” slung over his shoulder. Officers from the Grass Valley Police Department and the Nevada County Sheriff’s Office arrived at the scene, finding Strickland to be carrying what appeared to be a black plastic airsoft rifle marked with a telltale orange tip to its barrel, signifying that it was a replica and not a real firearm. At least some of the officers recognized Strickland from prior contacts and knew that he had mental issues and thus “would” (or should) “have known that Strickland was likely suffering from a mental health episode and would not likely respond to their commands in a ‘normal or expected manner.’”  

With guns drawn, five officers surrounded Strickland while repeatedly yelling at him to drop the gun. Strickland initially held the gun away from his body, telling the officers that it was a BB gun, and pointing to the orange tip as he slapped it with his hand making a noise that sounded more like plastic than metal. Taking no chances, the officers nonetheless continued to yell at him to drop the gun, that they didn’t want to kill him, and that he could have painted the orange tip. Strickland responded that he was “not doing nothing wrong.”  

Up to this point, Strickland merely stood there while pointing the gun toward the ground. As the officers began to tighten a circle around him, Strickland dropped to his knees. But then he started waving the gun around, pointing it at times toward the sky and then toward several of the officers. One officer deployed a Taser but missed. Seconds later, Strickland lowered the barrel, pointing it directly toward the officers, resulting in three of the officers opening fire.  

Struck several times, Strickland was taken to a nearby hospital where he was pronounced dead. The whole encounter, from the initial contact until Strickland was shot, lasted a little more than three minutes. A year later, Strickland’s mother, child, and estate sued the officers and their departments in federal court pursuant to 42 U.S.C. § 1983. The district (trial) court dismissed the case, and the plaintiffs appealed. 

The Ninth Circuit Court of Appeal affirmed.  

In so holding, the court first noted that shooting someone qualifies as a “seizure” of that person, and thus falls within the gambit of the Fourth Amendment. To be lawful under the dictates of the Fourth Amendment, such a seizure must be “reasonable.” A seizure is not reasonable if excessive force is used. The U.S. Supreme Court in Graham v. Connor (1989) 490 U.S. 386, long ago established the standards to be applied in such a circumstance, first noting that “(t)his inquiry requires balancing ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’” (pg. 396)  

In making this determination, the Graham Court determined that the following factors must be considered; (1) “the type and amount of force inflicted,” (2) “the severity of the crime at issue,” (3) “whether the suspect posed an immediate threat to the safety of the officers or others” and “whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” (Ibid.)  

But this list was not intended to be exhaustive, leaving open a court’s obligation to also consider other relevant factors such as (4) “the availability of less intrusive alternatives to the force employed,” (5) “whether proper warnings were given,” and (6) “whether it should have been apparent to officers that the person they used force against was emotionally disturbed.” (S.B. v. County of San Diego (9th Cir. 2017) 864 F.3rd 1010, 1013.)  

The Ninth Circuit first determined in this case that some of the Graham factors support the plaintiffs’ argument that the force used against Strickland was unconstitutionally excessive. First, Strickland was known to the officers to be homeless and mentally ill. Secondly, Strickland was not suspected of having committed a serious crime. At least at the start of this confrontation with police, Strickland had not yet brandished the gun at anyone nor threatened the life or property of others. Third, the Court noted that the officers had failed to employ de-escalation techniques, wait for supervisors, or call in for the backup of someone with crisis or mental health training (assuming at this point that it was practical to do any of these things under the circumstances). 

To the contrary, the officers seemingly exacerbated the situation by aggressively shouting directions at Strickland immediately upon their arrival. Lastly, under Graham, the officers employed deadly force, firing several rounds at Strickland and killing him. Based upon all this, the Court determined that “the bulk of the Graham factors favor(ed) Strickland.”  

However, that does not end the inquiry. The more important question is, per the Court; “whether the immediacy of the threat that Strickland posed outweigh(ed) those considerations here.”  

The Court held that they did, ruling that “(o)f all the use-of-force factors, the ‘most important’ is whether the suspect posed an ‘immediate threat.’” “Although the Constitution does not allow an officer to use lethal force to seize an unarmed, non-dangerous suspect by shooting him dead,” that is not what occurred here. Under the circumstances of this case, the “objective factors” justified the officers’ reasonable “fear for (their) safety or the safety of others.” (Citing Deorle v. Rutherford (9th Cir. 2001) 272 F.3rd 1272, at 1281.) “In other words, ‘the objective facts indicate(d) that the suspect (i.e., Strickland) pose[d] an immediate threat to the officer(s) or a member of the public.’” (Bryan v. MacPherson (9th Cir. 2010) 630 F.3rd 805, 826.)  

While noting that the circumstances in a case such as this are not “static,” with the reasonableness of the force used “chang(ing) as the circumstances evolve,” the basic rule is that “when a suspect points a gun in an officer’s direction, ‘the Constitution undoubtedly entitles the officer to respond with deadly force.’” (George v. Morris (9th Cir. 2013) 736 F.3rd 829, 838.)  

As to whether it was an actual firearm being pointed at the officers, the standard of proof is “probable cause.” It is “well settled that lethal force is justified if an officer has ‘probable cause to believe that [a] suspect poses a significant threat of death or serious physical injury to the officer or others.’” (Long v. City & County. of Honolulu (9th Cir. 2007) 511 F.3rd 901, 906.)  

Also, the reasonableness standard does not always require that the officers delay their fire until a suspect actually turns his weapon on them. “If the person is armed – ­­ or reasonably suspected of being armed – ­­ a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.” (George v. Morris, supra.) Further, the officers are entitled to be reasonably mistaken about the nature of the threat.  

The issue in this case was whether the fact that the weapon Strickland brandished appeared to be nothing more than a replica of a firearm (i.e., a BB gun), as indicated by the orange tip of the barrel and Strickland’s assertions that that was all he was carrying, made it unreasonable for the officers to assume otherwise. To this, the Court held that the officers were not required to take that chance.  

Per the Court, the officers were reasonably justified in not taking Strickland’s assurances at face value, or even the fact that the barrel of the gun had an orange tip, in that a “misplaced trust in this circumstance could (have been) fatal for the officers.” Based upon all this, “under the totality of the circumstances, it was objectively reasonable for the officers to believe Strickland posed an immediate threat” despite that, afterward, it turned out to be otherwise.  

Shooting Strickland was held to be justified as a matter of law. The district court, therefore, correctly dismissed the plaintiffs’ lawsuit. 

I have to say that this case surprises me a bit. While I’m happy with the results (for the officers’ sake), it’s interesting to note that of the five officers at the scene, only three of them opened fire when Strickland pointed his BB gun at them.  

I probably would have been one of the two who declined to react with deadly force, having a history (when I was a cop way back in the ’70s) of not shooting potentially dangerous persons in situations where I could have legally done so – ­­decisions, by the way, for which I have never had any regrets. At least three of these situations involved potentially dangerous fleeing felons, one case where it was known that the suspects had just committed an armed robbery. In two of these cases, including the armed robbery, the suspects were taken into custody with no one getting hurt. In the third, the suspects were later arrested by detectives. Another case, for which I was later chastised by my sergeant for not having used deadly force, involved a dope-crazed 17-year-old girl, waiving two kitchen knives at me and my partner in close quarters. Ultimately, she – ­­along with her equally crazy mother and brother, who tried to interfere – ­­was physically subdued without having to shoot her, although I was told after the fact that I broke her arm while handcuffing her.  

But my personal reluctance to shoot and kill another human being is totally irrelevant to the rule of this case decision – ­­that an officer is not required to take the potentially dangerous route of failing to shoot simply because there is reason to believe that a weapon pointed at the officer by a suspect is not real. This is a good decision for law enforcement officers.