• Use of deadly force and the issue of reasonableness 
• The Graham factors 
• Handling of mentally ill, suicidal individuals 
• Qualified immunity from civil liability 

In determining the lawfulness of the use of deadly force, a court is to determine whether the officer’s actions were reasonable under the circumstances at the time. In determining reasonableness, the court is to consider the severity of the crime, whether the suspect posed an immediate threat and whether the suspect was actively resisting or evading arrest. An officer’s pre-shooting tactics are entitled to little weight, and, by themselves, do not establish that a resulting shooting was unreasonable.  

The fact that the person upon whom deadly force is used may be mentally ill is irrelevant to the issue of the reasonableness of the force used to subdue him. An officer is required to warn about the impending use of deadly force only when it is feasible to do so. In an excessive use of force civil case, an officer is entitled to qualified immunity absent prior legal precedent to the contrary, clearly established by preexisting case law.

On Dec. 10, 2018, city of Redwood officers responded to a call concerning a man attempting to kill himself with a knife. They contacted the man’s wife, plaintiff Kristin Hart, who was covered with blood from attempting to stop her husband, Kyle Hart, from cutting himself. She directed the officers to the backyard. Upon heading for the backyard, the officers decided between themselves that the lead officer would “go lethal,” drawing his firearm, while the second would “go less lethal,” openly carrying her Taser.  

They found Kyle standing in one corner of the yard, holding a knife, about 37 feet from the officers, either standing behind or on top of a low dirt mound. It was an issue whether he was facing away from the officers and holding the knife down at his side, facing them and holding the knife out at shoulder height, or holding it to his own throat.  

Kyle began moving toward the officers and the lead officer told him twice to drop the knife. Kyle continued moving at a “brisk walk” or a “slow run,” covering about 30 feet in approximately six seconds, while “holding the knife out towards them.” The officers did not warn Kyle that they would shoot. As he continued to approach them while still holding the knife, the second officer fired her Taser at him. One Taser probe struck Kyle on the left side of his head while the other missed, making the Taser ineffective in that both prongs must hit their mark. 

At the same time (or immediately thereafter), as Kyle was eight to 10 feet from the officers and still approaching, the lead officer shot at him five times, hitting him in the upper torso with three rounds. Kyle fell to the ground at the lead officer’s feet and within five feet of the second officer. 

Transported to the hospital by paramedics, Kyle was pronounced dead upon reaching the emergency room. In April 2021, plaintiffs Kristen Hart and her children filed a civil lawsuit pursuant to 42 U.S.C. § 1983 in federal court, alleging a violation of constitutional and state law rights. Both plaintiffs and the defendant officers filed cross-motions for summary judgment, which the district (trial) court denied except as to certain claims asserted by the plaintiffs.  

Specifically, the district court determined that the lead officer was not entitled to qualified immunity from civil liability. In making this determination, the district court relied upon the rules as previously laid out by the Ninth Circuit Court of Appeals in Deorle v. Rutherford (9th Cir. 2001) 272 F.3rd 1272, at page 1285: “Every police officer should know that it is objectively unreasonable to shoot...(1) an unarmed man who: (3) has committed no serious offense, (3) is mentally or emotionally disturbed, (4) has been given no warning of the imminent use of such a significant degree of force, (5) poses no risk of flight, and (6) presents no objectively reasonable threat to the safety of the officer or other individuals.” The city and the officer appealed. 

The Ninth Circuit Court of Appeals reversed, holding that the officer’s actions in shooting Kyle Hart were reasonable under the circumstances then present.  

(1) The Graham factors: The Supreme Court has dictated that in determining whether it was objectively reasonable for an officer to believe that the amount of force used was required by the situation with which he or she is confronted, a court is to “balance ‘the nature and quality of the intrusion on the individual’s?Fourth Amendment?interests’ against ‘the countervailing government interests at stake.’” (Miller v. Clark County (9th Cir. 2003) 340 F.3rd 959; quoting?Graham v. Connor (1989) 490 U.S. 386, 396. See also Saucier v. Katz (2001) 533 U.S. 194, 205.)  

The Supreme Court in Graham set forth a three-part test to use in evaluating this issue: (1) The severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.  

Factor #2 is considered the most important of the three. When evaluating this factor, the court noted that “(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.” (Graham v. Connor, supra., at pg. 396.) Finding immaterial the minor factual differences alleged by the plaintiff in this lawsuit (on which side of the path the officers were standing, how Hart was holding the knife, where exactly Hart was standing when first observed by the officers, or how fast he approached the officers), the court held that it was clear that Hart did in fact pose an immediate threat to the officers.  

The court based this conclusion on two undisputed facts: (1) Hart?was?holding a knife when they first saw him and (2) Hart continued to hold the knife, pointed toward the officers, as he?approached?them. It was also relevant that Hart was non-communicative as he approached the officers and failed to respond to or comply with the officer’s command to “drop the knife.” The officer’s “decision to fire was based on Hart’s failure to comply with commands, his approach, and his possession of a lethal weapon.”  

The plaintiffs’ asserted factual disputes did not eliminate any of these core circumstances that led the officer to reasonably believe that Hart posed an immediate threat to both himself and his partner.  

Although concluding that this factor was dispositive by itself, the court went on to conclude that the other two Grahm factors (The severity of the crime at issue and whether the suspect was actively resisting arrest or attempting to evade arrest by flight) similarly favored the civil defendants.  

Hart, by his actions, was threatening to commit an assault on law enforcement officers with a knife while refusing commands to drop it. As such, factor #1 favored the use of deadly force by the officers in defending themselves. As for factor #3, the court found this also favored the use of deadly force in that Hart, by refusing to drop the knife as he aggressively approached the officers, was “actively resisting arrest or attempting to evade arrest.” “Ultimately, it is the totality of the circumstances?that lead (the court) to conclude that?Graham’s standards are satisfied,” justifying the use of deadly force. 

(2) Other relevant factors: In addition to the Graham factors, the court also discussed three other issues raised by the plaintiffs: “(a) (T)he officers’ pre-shooting conduct and the availability of less-intrusive alternatives, (b) Hart’s apparent mental illness and (c) the officers’ failure to warn that they would shoot. 

(2a) Pre-shooting conduct by the officers and the availability of less-intrusive tactics: While noting that California law and the Ninth Circuit do take into consideration the officers’ pre-shooting conduct, including the availability of “less-intrusive tactics,” when considering whether an officer has acted reasonably when using deadly force?(See Hayes v. County of San Diego (9th Cir. 2013) 736 F.3rd 1223, 1231, 1235-1236.), the court also noted that “[t]he?Fourth Amendment?is narrower and places less emphasis on pre[-]shooting conduct.”?(Vos v. City of Newport Beach (9th Cir. 2018) 892 F.3rd 1024, at 1037.)  

The rule is also that although “[t]he events leading up to the shooting, such as the officer’s tactics, are encompassed in [the] facts and circumstances,” a court can consider such pre-shooting tactics are not entitled to much weight. (It was also noted in footnote five that other federal circuits have held that an officer’s pre-shooting conduct to be irrelevant, and cannot be used to establish a?Fourth Amendment violation.) Whether the trial court took into account the officers’ pre-shooting conduct in this case, the Ninth Circuit ultimately held that nothing the officers could have done differently would have prevented the fatal shooting. As for the availability of “less intrusive tactics,” the plaintiffs suggested that the officers could have moved to a different location in the yard which itself was “roomy and had patio furniture, and so the officers could have repositioned and potentially put the patio table between themselves and Hart.” The court determined that this fact, even if true, would not have made any difference in the outcome.    

(2b) Hart’s apparent mental illness: The court first noted that Hart’s mental issues change nothing as far as the outcome of the case. Specifically, the Ninth Circuit has “refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.”?(Citing Crawford v. City of Bakersfield (9th Cir. 2019) 944 F.3rd 1070, 1078.) Whether the deceased suffered from a mental illness, the same Graham factors are to be used when evaluating the reasonableness of the officers’ use of deadly force. 

(2c) The officers’ failure to warn: While the courts like to see a warning before deadly force is used, the rule is that no such warning is necessary when it was not “feasible” to do so. “Here, given the speed at which the unfortunate events unfolded, it was not unreasonable for (the officer) to forgo a verbal warning and take action to protect himself and his partner from an immediate threat.”

(3) Qualified immunity: Contrary to the trial court’s ruling, the Ninth Circuit held that even if the officer’s use of force in this case was found to be unreasonable, he was at the very least entitled to qualified immunity from civil liability. To deny an officer qualified immunity, not only must a constitutional right be violated, but that right must be “clearly established” by preexisting case law. To be clearly established, there need not be “a case directly on point, but?existing precedent must have placed the statutory or constitutional question beyond debate.”?(Ashcroft v. al-Kidd (2011) 563 U.S. 731, 741.) “While in the ‘rare’ case a clearly established right may be obvious, clearly establishing a right usually requires ‘controlling authority’ or a robust ‘consensus of cases of persuasive authority.’” (District of Columbia v. Wesby et al. (2018) 583 U.S. 48, at 63 & 64; quoting?Ashcroft v. al-Kidd, supra, at 741-742)  

Plaintiffs in a civil suit have the burden of showing that the law was clearly established. In this case, Kristin Hart and her children, as plaintiffs, failed to do so. Per the court, none of the cases the plaintiffs cited put the “constitutional question beyond debate” so that the “violative nature of (the officer’s) particular conduct [was] clearly established.”  As such, the officer and the city were entitled to qualified immunity from civil liability. 

It’s always disturbing to see situations where police officers respond to a call for assistance with a mentally ill, suicidal individual, only for the officers to accomplish the exact opposite of what the caller had expected when he or she asked for the help. The last thing any officer wants to do is kill someone when the officer was called there to help, even if it is a “suicide by cop” situation.  

You would think the legal standards would be different than they are when responding to a call from someone asking for protection from a mentally deranged individual. But the applicable “legal standards” are no different, as so pointedly discussed in this case. If a mentally ill person threatens immediate serious harm to the officers or others, then deadly force is warranted so long as that force is reasonably necessary to prevent the harm. From the point of view of the officer who is putting his or her life on the line, you can certainly understand that.  

At least in this case, “less lethal” (in the form of a Taser) was attempted, although it appears that the officer could have been more accurate. In my day (way back in the ’70’s), all we had was a baton (or rather a broom handle-like stick, painted black, with a rubber grommet used to keep it from sliding through the metal ring on our gun belt), Mace and training on how to effectively disarm that knife-wielding mental case without killing him.  

Yet I don’t remember anyone I worked with way back then who had to shoot and kill a mentally deranged individual merely because he or she was armed with a knife, or any other potential weapon, short of a firearm. We’d just Mace him and/or beat that knife out of his hand with our nightstick with no one getting seriously hurt in the process. I don’t think we were any braver in those days...maybe just dumber. But either way, we got the job done and no one got killed.