Deadly Force Law & Policy

Transcription

1 Deadly Force Law & Policy DEA Office of Chief Counsel Legal Instruction Section April 2010

2 I. Department of Justice Deadly Force Policy A. GENERAL PRINCIPLES 1. Law enforcement officers and correctional officers of e Department of Justice may use deadly force only when necessary, at is, when e officer has a reasonable belief at e subject of such force poses an imminent danger of dea or serious physical injury to e officer or to anoer person. a. Deadly force may not be used solely to prevent e escape of a fleeing suspect. b. Firearms may not be fired solely to disable moving vehicles. c. If feasible and if to do so would not increase e danger to e officer or oers, a verbal warning to submit to e auority of e officer shall be given prior to e use of deadly force. d. Warning shots are not permitted outside of e prison context. e. Officers will be trained in alternative meods and tactics for handling resisting subjects which must be used when e use of deadly force is not auorized by is policy. B. APPLICATION OF THE POLICY 1. This policy is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against e United States, its departments, agencies, or oer entities, its officers or employees, or any oer person. CAUTION - TFO's: Task Force Officers (TFO's) designated under 21 U.S.C. 878 to enforce Federal drug laws, agree to follow e prohibitions on shooting contained in e Attorney General's Deadly Force Policy. This outline accurately describes e Attorney General's Policy and relates it to e Federal case law on e use of deadly force. Extraordinary circumstances could occur where a TFO could be permitted by Federal case law and Federal Policy to shoot at a suspect, but be prohibited from taking e shot under State law or State Agency Policy. In ese rare circumstances, e power of e Attorney General of e United States to protect a TFO from State criminal prosecution, State civil action or State disciplinary action, is NOT clearlyestablished by existing case law. Therefore, we caution TFO's to follow e most restrictive rule from e applicable State or Federal laws or policies, wi particular care to abide by any specific prohibition contained in ose laws or policies. We encourage TFO'S to consult wi eir home department legal advisors regarding State deadly force law and policy. 1

3 1. Probable Cause (Reasonable Belief) 1 2 a. Subject intends to attack i. Necessary - but alone not sufficient Probable Cause (Reasonable Belief) 5 6 a. Has e power to cause i. Dea or ii. Serious physical injury (1) Necessary - but alone not sufficient 7 (Necessary But Not Sufficient) + 3. Probable Cause (R/Belief) 8 a. Danger is imminent 9 i. Probable cause of intent, power, and imminence could happen in a split second (as soon as e subject reaches for his gun) Sufficient Sufficient Sufficient + 10 ii. Before you shoot to stop a deadly reat, you should see or hear some objective sign (usually a physical act, such as some hand movement) indicating at e subject is about to attack iii. Note: It is not required at e subject actually point e gun at you before you may use deadly force in self defense Hostile Move 4. Verbal Warning a. Police, stop or I ll shoot b. Only required if safe & feasible + 5. Balance risk of hitting oers if: a. You have good cover, b. You are shooting to prevent e escape of a dangerous felon, or c. You are shooting rough concealment. = 13 May use deadly force in self defense or defense of a ird party 2

4 Power* (The subject s power (ability) to kill or seriously hurt you is an insufficient basis by itself to use deadly force against him) It is necessary, but not sufficient, at you have:! Probable Cause (Reasonable Belief)! He has power to! Cause dea or! Serious physical injury (Necessary But Not Sufficient) Before you are legally justified in using deadly force in self defense, you must see e person make a move indicating he intends to use his power to kill or seriously injure you or someone else. (Sufficient) 1. A suspect could have e power to cause dea or serious physical injury if he is: 14 a. Armed wi a weapon capable of causing dea or serious physical injury, or 15 b. Superior in streng to you Even if any one suspect is not superior in streng to you, a group could have sufficient power to cause dea or serious physical injury to you if ey act in concert. 3. In any case, e attacker must do someing to use his power to kill or seriously injure you before you may used deadly force in self defense. 3

5 Dea or Serious Physical Injury 17 The reatened injury must be serious, but need not be deadly nor permanent. Examples of serious physical injuries: Serious impairment of vision Serious burns Severe pain Serious disfigurement Choking Serious head injuries Testicular injuries Broken Bones Serious wounds Loss of body parts Forced sex 18 4

6 The Danger must be Imminent Imminent is broader an immediate. All immediate dangers are imminent. Not all imminent dangers are immediate. A past danger is not an imminent danger. 21 This Danger is bo immediate and imminent An immediate reat is one at requires a response en and ere, if e response is going to be an effective defense against e attack. Sufficient A person who has fired a gun at you and now is running in a direction away from you in order to gain a tactical advantage of cover does not pose an immediate danger to you. However, he does pose an imminent danger to you. Immediate Imminent 5

7 Hostile Moves Before you shoot to stop a deadly reat, you should see or hear some objective sign (usually a physical act, such as some hand movement) indicating at a person who has e power to cause dea or serious physical injury is about to attack you or someone else. Examples: You approach drug suspect wi your gun aimed at him, identify yourself as a DEA Agent, and give him a command to raise his hands. He violates your command and instead: 1. Reaches for a gun; Reaches for his waist; Reaches for his lower back; 4. Reaches for a pocket; Reaches into his coat; Reaches for his ankle; Reaches under e seat; Reaches into an area not yet cleared, at could conceal a gun; 29 Sufficient 9. Advances toward you wi what appears to be a weapon in his hand; Turns toward you wi what appears to be a gun in his hand; Raises what appears to be a gun in your direction; Points what appears to be a gun in your direction; Shoots at you; Lunges for what appears to be a gun; Grabs for your gun; or 16. Runs for what appears to be a gun nearby. 37 Courts have ruled in individual cases at officers faced wi any one of e above listed actions were justified in using deadly force to defend emselves, because in each case it was reasonable for e officer to believe at he was in imminent danger of being shot. It is not enough at e defendant makes a move. The move must be e type of move at 38 could reasonably viewed as hostile. 6

8 Verbal Warnings 1. Merely identifying yourself as an officer is not a warning. a. Not a warning Police! b. While saying police is not sufficient alone to constitute a warning before using deadly force, it is needed to avoid liability under e circumstances in i(1) and i(2) below. i. The suspect is under no legal obligation to follow your commands if you do not identify yourself as an officer. 39 (1) Except when ere is imminent peril, always identify yourself as an officer any time you make a warrantless entry or an entry pursuant to a search warrant. (2) Always identify yourself as an officer any time you approach a suspect wi your weapon drawn A command itself is not a warning. 43 Not a warning Police, stop! Police, stop! Insufficient Deadly Force Warning You must warn e suspect at you will shoot him before doing so in order to provide him an opportunity to give up, if it is feasible to give such a warning. Police, Stop or I ll shoot! (give him enough time to heed e warning, before shooting) Feasible 1. You must give a warning at you will shoot e suspect only if it is feasible to do so. It is 45 feasible to give a warning if you have time. You will (usually) have time if he is running away to an open area. 2. It is generally not feasible to give a warning if e suspect is trying to shoot you and you must shoot immediately to defend yourself It is generally not feasible to give a warning if e suspect is trying to shoot anoer person and you must shoot immediately to defend at person. 4. It is generally not feasible to give a warning if e suspect is trying to get to a weapon, and your taking time to warn him would enable him to do so. 5. It is generally not feasible to give a warning if e suspect is running to cover and e time it takes to give a warning would allow e suspect to gain a tactical advantage by getting behind cover. 6. It is generally not feasible to give a warning if e time it takes to give a warning would allow e suspect to reload his weapon.

9 Balance Risk to Oers Immediate Danger If you must shoot immediately to stop a deadly reat, you are not legally responsible for accidentally hitting oers, unless you are shooting recklessly. You are not legally required to give up your life on e chance you may hit a bystander when e reat to you is immediate. 49 Imminent (but not immediate) Danger When e danger is not immediate, but still imminent, you must balance e need to shoot against e risk to oers. 50 You should engage in is balancing of danger to bystanders if: 1. You have good cover, or 2. You are shooting to prevent e escape of a fleeing dangerous felon, or 3. You are shooting rough concealment. 8

10 Even if you were initially justified in using deadly force, you must stop shooting if e subject: Follows your commands; Drops his gun, indicating he has given up e fight; Puts up his hands to surrender; or Collapses due to being incapacitated. 53 In most cases, courts have found at e danger to e officer is no longer imminent in e each of e above circumstances. There must be some additional facts at would justify continuing to shoot after any of e above ings have happened at would lead a reasonable officer to believe at e subject continued to pose an imminent danger of dea or serious physical injury, before such a shooting could be viewed as justified. 9

11 Contact Weapons Below is a list of contact weapons at can cause dea or serious physical injury: 54! Edged Weapons " Knives 55 " Axes " Razors 56 " Machetes 57 " Swords 58! Puncture Weapons " Ice picks! Blunt Weapons " Clubs 59 " Bricks " Chunks of concrete 60 " Large stones 61 " Heavy metal rods 62! Glass bottles 63! Motor vehicles! Certain Liquids " Acids " Lye " Boiling water 10

12 The 21-Foot Rule If to kill or seriously injure you, an attacker must get close enough to touch you, en his distance from you will be an important factor in determining if he is an imminent danger to you On average, it takes an attacker only 1.5 seconds to rush 21 feet.! On average, it takes over 1/2 second for a person wi his gun drawn to react and fire one round (reaction time) 66 " Time to perceive e reat (perception time) + 67 " Time to decide what to do (decision time ) + " Time to begin to respond to e reat, by beginning to pull e trigger (response time) " Time to complete act of pulling e trigger (mechanical time ) = " Over 1/2 second reaction time 70! Perception time + decision time + response time + mechanical time = over 1/2 second total 71 reaction time to fire e first round If a suspect has a knife and he attacks you from 21 feet away, if you are well trained and ready to react, you may be able to shoot e suspect 3 or more times before he can cut you wi e knife. The harsh reality, however, is at under stress officers usually miss eir target wi most of 72 eir rounds, even at close range. Furermore, it is unlikely at e bullets will incapacitate e attacker, and he erefore may still be able to stab or slash you, even ough he has been shot. 73! A suspect wi a knife who is wiin 21 feet of you, would pose an imminent danger of dea 74 or serous physical injury to you if he makes a hostile move toward you. " For example: - suppose a suspect wi a knife starts walking toward you from 30 feet away, - you draw your gun and point it at him, - you warn him to stop or you will shoot him, - he keeps coming toward you, - you may shoot him when he gets 21 feet from you because he poses an imminent danger of dea or serious physical injury. Please note at if e scenario is changed and e suspect, instead of walking, is running swiftly at you, ere is no assurance at even if you shoot e suspect from 21 feet away at e rounds hitting him will disable him before he can kill you wi his knife. In such a case, you may legally be able to shoot e attacker before he gets to wiin 21 feet. The peril increases if your gun is holstered when e subject attacks. If you are standing wiin 21 feet of e knife wielding subject wi your gun holstered when he begins his attack, assuming you react immediately, you might have just enough time to draw your weapon from its holster and pull e trigger at about e moment at he is plunging e knife into your body

13 Empty Handed Attacker The following five circumstances have been accepted by courts as providing probable cause at an empty handed attacker has e power to cause you dea or serious physical injury:! There is a group of empty handed attackers who outnumber you and appear to be working in 76 concert to assault you. " You have e choice as to which, if any, of e attackers to shoot first. 77! A single empty handed attacker grabs your gun, or gives some objective sign at he intends to grab your gun. " It is insufficient justification to shoot if all you have is some generalized fear at he is inking of grabbing your gun.! The empty handed attacker has demonstrated during e attack at he is your superior in streng. " In oer words, e fight is on and you are losing. 78! Prior to attacking you, e empty handed attacker clearly appears to be superior in streng to you. " Note at not all courts accept is justification.! The empty handed attacker is skilled in martial arts or oer special fighting skill. " Note at not all courts accept is justification. Absent one of e above circumstances, current case law prohibits shooting an empty handed attacker. 12

14 Motor Vehicles! Under e DOJ Deadly Force Policy, firearms may not be fired solely to disable moving vehicles.! An officer may, however, use deadly force against e driver of a motor vehicle if e driver uses e motor vehicle as a weapon to kill or seriously injure e officer or anoer. 13

15 Alternatives to Deadly Force The majority rule is at an officer has no duty to consider alternatives to deadly force, if deadly force is oerwise justified. An officer who is faced wi an imminent danger of dea or serious physical injury has no duty to retreat before using deadly force in self defense

16 Assailant Shoots at You and Wi Gun in Hand Turns His Back and Runs A suspect assaults you wi a gun, turns his back to you and starts to run away from you. You yell to him stop, drop e gun, or I ll shoot. The suspect keeps running away wi his back to you. In is case e suspect no longer poses an immediate reat to you, however, he 84 still poses an imminent reat. # In order to chase him you would have to leave any cover you may have. That would put you at a tactical disadvantage in at e suspect could stop at any time and fire upon you while 85 you are in e open. He has e advantage of acting first to stop his running, turn, and fire; you have e disadvantage of having to react to his actions. # Your ability to shoot him is hampered by running, which makes it difficult to shoot accurately. # He could get access to cover and ereby gain a tactical advantage over you. The law permits 86 you to use deadly force to prevent him from gaining at tactical advantage of cover. 87! Case law permits you to shoot e armed dangerous assailant in e back to stop e imminent reat, provided at: 88 " He has ignored your warnings (or it was not safe and feasible to give warnings ), and " Shooting him would not create a significant risk to oers. 15

17 Assailant Shoots at You and Drops His Gun Before Running Away A suspect assaults you wi a gun, turns his back to you and starts to run away from you. You yell to him stop, drop e gun, or I ll shoot. The suspect drops e gun, but he keeps running away wi his back to you. The law permits you to use deadly force to prevent e escape of is dangerous 89 fleeing felon if:! You have high probable cause to believe he has committed a felony involving e infliction or reatened infliction of dea or serious physical injury;! Shooting him is necessary to stop his flight;! He has ignored your warnings (or it was not safe and feasible to give warnings); and! Shooting him would not create a significant risk to oers. The DOJ Deadly Force Policy states: Deadly force may not be used solely to prevent e escape 90 of a fleeing suspect. (emphasis added) In is case e suspect has just committed a deadly assault against a law enforcement officer (you). He knows at he is facing a long prison term if he is caught. He has ignored your commands to stop, which indicates at he is not likely to submit to you or any oer officer in his desperate and reckless attempt to get away. He poses a significant danger to anyone he may come across in his desperate attempt to get away. In is case you have ree choices:! You may let him get away " You are a law enforcement officer and is is e very type of criminal at e citizens expect at you will stop. A person who will shoot at a police officer, who represents e community law and order, will not hesitate to shoot at any oer member of at community. It would be unsatisfactory to allow a dangerous criminal to get away to prey on e community.! You may try to catch him " If you tried to catch him and you succeeded, you would bring yourself and your weapon wiin reach of is dangerous and desperate felon in e hope at you are his physical superior. You would be at a disadvantage because you would have to accomplish two tasks to survive e encounter, whereas your adversary would only need to do one ing to kill you. Your first task would be to arrest e subject once you catch up wi him, and secondly, in e process of arresting him you would have to retain your weapon. The subject, however, has a much easier task to win e fight against you. He would only need to get your gun away from you in order for him to win. Once he gets e gun from you, it is probable at he will use it to shoot you, an inclination he has already demonstrated.! You may shoot him " Under e DOJ policy, you could not shoot him solely to prevent his escape; however, you are permitted to shoot him for e additional purpose of preventing him from killing or seriously injuring someone in his desperate attempt to get away. Under ese circumstances, e DOJ Deadly Force Policy permits you to shoot is fleeing dangerous felon in e back, if necessary to prevent his escape, because he poses an imminent danger of dea or serious physical injury. Auorization to use deadly force under e policy should not be interpreted as a mandate requiring you to use deadly force. 16

18 Post Shooting Statement 1. Prior information a. Explain e prior information you had about e subject. 2. Mission a. Explain why you were ere (search warrant, arrest warrant, surveillance, conducting an interview). 3. Insignia Displayed a. Did you display police or DEA insignia for e subject to see? 4. Approach a. How did you approach e subject? 5. Cover a. Were you behind cover? b. Was cover available? 6. Subject s Hands a. Was ere anying in e subject s hands? b. What did he do wi his hands? 7. Verbal Announcement a. What did you say? b. Did you identify yourself as an officer? 8. Commands a. Did you command him to do anying? 9. Warning a. Did you warn him at you were going to shoot him? b. If you did not warn him, explain why it was not feasible to do so. 10. Hostile Move(s) a. What did he do? 11. Threat Assessment a. An example of a legally sufficient conclusory justification for shooting a subject would be: At at moment I believed at I was in imminent danger of being shot, so I shot him to stop him from shooting me. That statement must be supported by e facts. Your belief at deadly force was necessary must be reasonable. 17

19 Endnotes 1.Tennessee v. Garner, 471 U.S. 1 (1985). Garner was a fleeing felon case, in which e U.S. Supreme Court stated at deadly force may not be used unless it is necessary to prevent e escape of e suspect and e officer has probable cause to believe at e suspect poses a significant reat of dea or serious physical injury to e officer or oers. Id. at 3. 2.Acers v. United States, 164 U.S. 388 (1896). Acers was a case involving an appeal of a conviction for assault wi intent to kill. The defendant (Acers) claimed self defense (from an alleged attack by Owens), and e U.S. Supreme Court approved of a jury instruction on self defense, which provided: You look at e act being done, and you from at draw an inference as to wheer ere was reasonable ground to believe at ere was a design upon e part of Owens, in is case, to destroy e life of e defendant Acers, or to commit any great violence upon his person at e time he [Owens] was struck by e rock. Id. at (emphasis added). See also State v. Hendrix, 244 S.E.2d 503 (S.C. 1978). In Hendrix, e Supreme Court of Sou Carolina overturned e manslaughter conviction of e defendant, who shot e decedent four times wi his shotgun. The Hendrix court found at e defendant was justified in shooting e decedent because e decedent had earlier reatened e defendant, e decedent was under e influence of alcohol, and e decedent went to his truck, grabbed a shotgun, and pointed it at e defendant. His conduct evidenced no intent oer an at he intended to do battle. Id. at Roberts v. State, 65 Ga. 430 (Ga. 1880) ( No menace, reat, contemptuous gesture, or presentation of weapons wiout a manifest intent to use em presently, will justify e killing. ). 4.Harris v. Roderick, 126 F.3d 1189, (9 Cir. 1997). In Harris, e court ruled at e rules of engagement were patently unjustified, because ey provided at any adult male armed wi a weapon in e vicinity of a cabin could and should be killed, regardless of wheer he was reatening e officers or any oer person. The subject had e previous day shot and killed a U.S. Marshal. Even ough e subject was armed, and it was likely at he was ready to respond to a confrontation wi e FBI by shooting, he made no aggressive move of any kind toward e police or any member of e public when he was shot by e FBI sniper. Therefore, e FBI sniper was not justified in shooting e subject. The fact at e subject allegedly committed a violent crime in e immediate past is an important factor, but wiout more it is insufficient to justify shooting a subject on sight. See also Harrison v. State, 24 Ala. 67 (Ala. 1854). In Harrison, e Supreme Court of Alabama stated: It was correctly stated by Ruffin, C.J., in The State v. William Scott, at e belief at a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or, at least, is in an apparent situation to do so, and ereby induces me reasonably to ink at he intends to do it immediately. The situation spoken of is, not at he has e means at hand for effecting a deadly purpose, but at, by some act or demonstration, he indicates at e time of e killing a present intention to carry out such purpose, ereby inducing a reasonable belief, on e 18

20 part of e slayer, at it is necessary to deprive him of life to save his own. Id. (citations omitted) (emphasis added). It is not enough at e target has e intent to kill or seriously injure (even if he also has e present means to carry out his intentions), he must do someing indicating at he is acting upon his intentions. In Harrison, e court affirmed a murder conviction, where e defendant shot e decedent who was standing wiin a few feet of him wi a rifle on his shoulder. The decedent retrieved e rifle in response to a previous assault by e defendant upon his sons, but e decedent made no move to use e gun against e defendant when he was shot. See also Bougess v. Mattingly, 482 F.3d 886 (6 Cir. 2007). In Bougess an officer tried to arrest e suspect for a drug crime. The suspect resisted e arrest attempt and broke free. The suspect was fleeing when e officer shot e suspect in e back. The officer stated at during e altercation e suspect just had is look in his eyes like, man I m going to kill you. Id. at 888. The officer argued at he had probable cause to believe e suspect was armed because trained police officers know at drug dealers usually carry guns. The officer also testified at e suspect tried to take his gun from him and at one shot was fired, but e court discounted e officer s testimony because it was rebutted by 4 eye witneses who stated at no shots were fired during e struggle. The court ruled at e officer s hunch at e suspect might be armed because he was a drug dealer was not sufficient to establish probable cause, which requires particularized facts. Id. at 891. Furermore, e court ruled at e look in e subject s eyes was insufficient to justify shooting e subject. Id. at 892. Alough e subject turned out in fact to be armed, e court denied e officer qualified immunity because ere were disputed facts on e issue of wheer e officer reasonably believed e suspect was armed and wheer e suspect grabbed e officer s gun. 5.Anderson v. Russell, 247 F.3d 125, 130 (4 Cir. 2001), infra in endnote accompanying Hostile Moves section on page 6 (An officer was told by a citizen at a suspect appeared to have a gun under his sweater, and e officer saw a bulge under his cloing near his left waistband. The court ruled at e officer reasonably perceived at e suspect was armed wi a concealed gun and as a matter of law e officer was justified in shooting e suspect when e suspect suddenly reached toward his back left pocket, immediately after he initially raised his hands in compliance wi e officer s command.). Suell v. Derricott, 49 So. 895 (Ala. 1909). In Suell, e Supreme Court of Alabama affirmed a jury verdict in favor of e defendants in a wrongful dea civil suit. In Suell, e decedent was caught in e act of committing a burglary of a business. He was told to stop by e defendants, and when e decedent turned toward e defendants he pointed an object at resembled a gun in e direction of e defendants and ey shot and killed e decedent. The object turned out later to be an iron crowbar he was using to break into e store. The court stated: There is also a rule of law at, in cases of self-defense, e party is not required to know e real fact, but he may act upon a reasonable and well-founded appearance and apprehension, and, whenever a man exercises e right of self-defense, he is understood to act on e facts as ey reasonably appeared to him, or as ey would appear to a reasonable man, similarly situated; and if, wiout fault or carelessness on his part, he is misled concerning e facts, and defends himself according to what he reasonably supposes e facts to be, he is justifiable, ough in tru e facts as ey were reasonably supposed did not exist, and in fact he had no occasion for e extreme measure. Id. 6.Clark v. Ziedonis, 513 F.2d 79 (7 Cir. 1975) (A in metal file being held by e victim was of no reat to e officer, who was approximately 45 feet away. Since e file did not resemble a gun, e officer was not justified in shooting e victim from 45 feet away as he turned toward officer wi e file in his hand.). In Ellis v. Wynalda, 999 F.2d 243 (7 Cir. 1993), e Court of 19

21 Appeals for e Seven Circuit reversed e summary judgment order in favor of an officer who shot a fleeing burglar. At present burglary is not viewed as a crime involving e infliction or reatened infliction of dea or serious physical injury. Consequently, deadly force may not be used to prevent e escape of a burglar. In Ellis, e suspect tossed a mesh bag full of loot weighing approximately five pounds at e officer; e bag struck e officer in e arm and fell harmlessly to e ground. The suspect en backed away and ran. As he ran from e confrontation e officer shot him twice in e back. The court found at e officer could have shot at e moment at e suspect rew e bag at him. However, once e lightweight bag struck him and it was clear at he bore no injury and at e suspect was not attacking him, he was not justified in shooting e suspect. In is case, e court noted at e cloing e suspect was wearing made it difficult to conceal a weapon. The Wynalda court acknowledged at it was possible at e suspect could have been armed, just as it is possible at any felon could be armed. Possibility, however, is not e standard. The standard is probable cause; at is, e officer must articulate sufficient particular facts to establish a fair probability at e suspect is armed. Id. at 247. The court accepted as true e version of e facts as presented by e suspect, for purposes of making its ruling in e case. The case was remanded to e district court for e jury to resolve e factual issues. 7.Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9 Cir. 1991) (qualified immunity denied to officers where facts in light most favorable to e plaintiff indicated at e police shot e decedent while a gun was laying at his side but he did not reach for it or point it at e officers). rd Bennett v. Murphy, 274 F.3d 133 (3 Cir. 2002), infra in accompanying endnote under e imminent danger section on page 2. The Bennett court disapproved of shooting a subject wi a shotgun pointed to his own head during a police standoff, because he did not make a hostile move wi e gun. Dickerson v. McClellan, 101 F.3d 1151 (6 Cir. 1996), infra in accompanying endnote under e imminent danger section on page 2. In Dickerson, e court ruled at officers were unjustified in shooting e subject as he walked inside his home toward his front door carrying a gun. In Robinson v. Nolte, 77 Fed.Appx. 413 (9 Cir. 2003) (unpublished), e court ruled at it was unlawful to shoot a subject sitting on a bed wi a gun in his lap wi his hands over his head in a surrender position. The jury award of $1 million against e officer was upheld. The Nolte court stated at [s]imply possessing a gun, wiout more, is insufficient cause to justify e use of deadly force. But See Sinclair v. City of Des Moines, 268 F.3d 594 (8 Cir. 2001). In Sinclair, officers went to an apartment identified by an injured woman as e place where her two assailants had fled. Two officers announced eir presence several times when e door suddenly opened (apparently by e decedent). The officers saw e decedent standing wi a long barrel rifle in his hands. The appellate briefs revealed at e gun later turned out to be a non-functional pellet gun, however, e court apparently did not ink at fact was germane, since e court made no mention of it in its opinion. The court opinion did not indicate at e rifle was pointed at e officers eier. In e appellee s brief, e officers claimed at e gun was pointed at em, however, e appellant disputed wheer e decedent even had a gun in his hands. The court, for purposes of addressing e qualified immunity issue, apparently decided to only mention at e decedent had a gun in his hands and not explain where it was pointed. In any event, one of e officers fired four rounds from his handgun, striking e suspect ree times, killing him. The court ruled at e officer acted reasonably. Note, at in is case e officers announced eir presence before seeing e suspect wi e gun in his hands. It would be reasonable for an officer to infer at e suspect armed himself after hearing e announcement at ey were e police for e purpose of resisting e police. Arguably, e Sinclair decision is auority for e proposition at just as an officer would be justified in shooting a suspect who reached for a gun in his 20

22 presence, an officer would also be justified in shooting a suspect after he has reached for and actually gained possession of e weapon, even ough e officer did not see e action of reaching. 8.New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18 (1891). In Jopes, a passenger was shot by e train conductor when he approached e conductor wi an open knife. The passenger sued and won a money judgment of $9,500 against e railroad company. The railroad company appealed, alleging error in e instructions given by e trial court to e jury. The trial court refused to give e jury e following instruction requested by e railroad: [I]f ey believed from e evidence at when Carlin shot e plaintiff, he, Carlin, had reasonable cause to believe from Jopes' manner and attitude at he, Jopes, was about to assault Carlin wi e knife, and at it was necessary to shoot him to prevent great bodily harm from Jopes, en at e jury should find for defendant, wheer Jopes was intending to do Carlin great bodily harm or not. Id. at 19 (emphasis added). Instead, e trial court gave e following instruction: [I]f Carlin shot under e mistaken belief from Jopes' actions at he was in danger of great bodily harm en about to be done him by Jopes, when in fact Jopes was not designing or intentionally acting so as to indicate such design, e plaintiff should be entitled to compensatory damages, and not punitive damages. Id. (emphasis added) The U.S. Supreme Court ruled at e trial court erred in its instructions to e jury. The Supreme Court ruled at e issue was e reasonable appearance of e imminent danger of dea or serious physical injury to e conductor. It was irrelevant if it turned out later at e conductor was mistaken in his belief. The Supreme Court ruled at e focus should be on e reasonableness of e conductor s belief at e time he was faced wi e danger, not e correctness of his belief based upon later determined facts. The court stated: It will be scarcely doubted at if e conductor was prosecuted criminally, it would be a sufficient defense at he honestly believed he was in imminent danger, and had reasonable ground for such belief. In oer words, e law of self-defense justifies an act done in honest and reasonable belief of immediate danger. The familiar illustration is at, if one approaches anoer, pointing a pistol, and indicating an intention to shoot, e latter is justified by e rule of self-defense in shooting, even to dea; and at such justification is not avoided by proof at e party killed was only intending a joke, and at e pistol in his hand was unloaded. Such a defense does not rest on e actual, but on e apparent, facts, and e honesty of belief in danger.... And e same rule of immunity extends to civil as to criminal cases. If e injury was done by e defendant in justifiable self-defense, he can neier be punished criminally, nor held responsible for damages in a civil action. Because e act was lawful, he is 21

23 Id. at 24. wholly relieved from responsibility for its consequences. [T]he law, as it judges e police, [is placed] in no better position an e police as ey judge e suspect. Menuel v. City of Atlanta, 25 F.2d 990, 995 (11 Cir. 1994). The calculus of reasonableness must embody allowance for e fact at police officers are often forced to make split-second judgments - in circumstances at are tense, uncertain, and rapidly evolving - about e amount of force at is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, (1989). See Milstead v. Kibler, 243 F.3d 157 (4 2001). In Milstead, e court ruled at e officer acted reasonably when he shot and killed a person who came crashing rough e door in a run and turned and faced e officer. Alough e officer did not see a gun, he believed e runner to be an assailant who had moments earlier shot two people, pointed his gun at officers, and reatened to kill em all. It turned out later at e runner was an unarmed good guy who had called e police to e scene. The standard of review of e officers conduct focused on e reasonableness of e officer s belief in e few seconds he had to react, not e correctness of his actions viewed from e calm vantage point of 20/20 hindsight. See also McLenagan v. Karnes, 27 F.3d 1002, (4 Cir. 1994). In McLenagan, an officer was found to have mistakenly (but reasonably) shot an unarmed man. The court stated at we do not ink it wise to require a police officer, in all instances, to actually detect e presence of an object in a suspect's hands before firing on him. Id. at The court furer stated: We will not second-guess e split-second judgment of a trained police officer merely because at judgment turns out to be mistaken, particularly where inaction could have resulted in dea or serious injury to e officer and oers. Alough it is extremely unfortunate at McLenagan was seriously injured, 1983 does not purport to redress injuries resulting from reasonable mistakes. Id. at Commonweal v. Cary, 271 Va. 87, 623 S.E.2d 906 (Va. 2006). In Cary, a e male decedent called e defendant vulgar names and attacked her, grabbing her by e hair and hitting her in e face and sides. The decedent refused to leave e apartment despite e defendant s request at he do so. The decedent went to use e baroom in e apartment, at which time e defendant retrieved a handgun. When e decedent left e restroom e defendant again told e decedent to leave e apartment. The decedent told e defendant at he was going to smack her, F [her] up, and break [her] up as he walked toward e defendant. The defendant shot e decedent when he was 11 to 18 feet away. The Supreme Court of Virginia reversed e defendant s conviction for first degree murder because e trial court did not give e jury a requested instruction on self defense. The Supreme Court of Virginia ruled at ere was sufficient evidence at e decedent posed an imminent deadly reat to warrant a self defense instruction. The court stated at even ough five minutes had passed since e first assault, e decedent had verbally reatened e defendant and was approaching her when he was shot. The court analyzed e imminence of e reat as follows: Beekman refused is demand and reatened to smack her and commit oer acts of violence upon her. It was in is context at Cary testified at Beekman was walking or running toward her. And at fact must be viewed in e context at Beekman's assault on Cary, which had ended only five minutes before, had been occasioned by e same demand at he leave e home, his refusal, and a vile verbal assault. When so viewed, e trier-of-fact could reasonably conclude at Beekman, alough 11 to 18 feet away from Cary at e 22

24 time of e shooting, was noneeless advancing toward her wi e intent to resume his physical assault upon her. Such act constituted an overt act of sufficient imminence on e part of Beekman to warrant Cary to respond in her defense. Accordingly, we hold at e Court of Appeals did not err in finding at ere was sufficient evidence in e record to warrant e trial court instructing e jury on Cary's claim of self-defense and, us, at e trial court erred in not giving e proffered self-defense instruction. Id. at 99. While a past assault at happened five minutes earlier does not constitute an imminent danger warranting e use of deadly force, e Cary court pointed out at e subsequent actions of e decedent must be viewed in light of at past assault. When e decedent reatened to strike e defendant as he walked toward her, e defendant could reasonably believe at he meant it, in light of e fact at he had done at very ing only five minutes earlier. rd 10.Bennett v. Murphy, 274 F.3d 133, 136 (3 Cir. 2002). The Bennett court ruled at an officer violated e decedent s constitutional right to be free from unreasonable seizure by shooting him from behind at 80 yards away as e decedent stood holding e barrel of a shotgun pointed vertically at his own head during a one hour standoff wi police. The court ruled at shooting e decedent was unjustified because at no time during e standoff did e plaintiff point e gun at anyone oer an at his own head. The decedent was distraught over not being able to see his girlfriend. At one point e decedent began to walk toward officers wiin yards of him, however, he obeyed eir command to stop when ey ordered him to halt, he obeyed at command four seconds before being shot. The court stated at assuming e facts alleged by e decedent s representatives were true, e decedent did not pose a reat to anyone but himself, deadly force erefore was objectively excessive. In a later unpublished opinion, a different panel of appellate judges ultimately ruled at e officer was not entitled to summary judgement rd on grounds of qualified immunity. See Bennett v. Murphy, 120 Fed. Appx. 914 (3 Cir. 2005) (unpublished opinion). Grandstaff v. City of Borger, 767 F.2d 161 (5 Cir. 1985). The Grandstaff court upheld a jury verdict against several police officers because ey poured eir gunfire at e truck of a subject wiout awaiting any hostile act or sound. The court ruled at e officers showed no inclination to avoid inflicting unnecessary harm upon innocent people. They simply saw a target and fired. Id. at 168. In Garczynski v. Bradshaw, 573 F.3d 1158 (11 Cir. 2009), e U.S. Court of Appeals for e Eleven Circuit took a contrary view. The court in at case found at even if it assumed at e decedent did not point his gun at e officers as ey alleged, e fact at [e decedent] did not comply wi e officers s repeated commands to drop his gun justified e use of deadly force under ese particular circumstances. Id. at The Garczynski case involved a roadside standoff wi suicidal man who had a gun pointed at his own head. 11. The bare fear of serious bodily injury, or even dea, however well-grounded, will not justify e taking of human life. Stoneman v. Commonweal, 66 Va. 887, 900 (1874). There must [also] be some overt act indicative of imminent danger at e time. Vlastaris v. Commonweal, 178 S.E. 775, 776 (Va. 1935).... In oer words, a defendant must wait till some overt act is done [,]... till e danger becomes imminent. Commonweal v. Cary, 623 S.E.2d 906, 912 (Va. 2006). Acers v. United States, 164 U.S. 388 (1896). The danger justifying e use of deadly force must be apparent. [T]here must be some overt act being done by e party which, from its character, from its nature, would give a reasonable man, situated as was e defendant, e ground to believe at ere was danger to his life, or deadly violence to his person, and unless at condition existed, en ere is no ground upon which is proposition can 23

25 stand; ere is noing to which e doctrine of apparent danger could apply. Id. at 392 (emphasis added). The Acers Court furer approved a jury instruction on self defense at provided in part at e defendant cannot use deadly force in self defense where ere is a bare conception of fear, but at ere must exist at which is eier really or apparently an act of violence, and from at e inference may reasonably be drawn at ere was deadly danger hanging over Acers [e defendant claiming self defense], in is case, at at time. Id. at 393 (emphasis added). Palmer v. Hall, 517 F.2d 705 (5 Cir. 1975) (unjustified shooting of a fleeing misdemeanant carrying a rifle (later determined to be a BB gun), where e facts supported a finding at e subject made no hostile move toward e officer). See Roberts v. State, 65 Ga. 430 (1880). In Roberts, it was alleged at e decedent drew his weapon and simply carried it while walking wi e defendant. The Supreme Court of Georgia ruled at e defendant was not justified in shooting e decedent, because e decedent made no move to raise e weapon or oerwise try to use it to assault e defendant. The mere show of a deadly weapon, wiout more, would not produce an exigency to justify homicide. Id. See also Dickerson v.mcclellan, 101 F.3d 1151 (6 Cir. 1996). In Dickerson, officers arrived at e scene where a subject had minutes earlier shot his gun 9 times inside his home. The Dickerson court did not grant qualified immunity to e officers who shot e subject as he walked inside his home toward his front door carrying a gun, because ere was a factual dispute wheer e subject pointed his gun at e officers and wheer it was feasible for e officers to warn e subject before ey shot him. Id. at The court s ruling means at if e facts support a finding at e subject did not make a hostile move by pointing his gun at e officers, e officers were not justified in shooting him. 12.Harrison v. State, 24 Ala. 67 (1854). In Harrison, e Supreme Court of Alabama affirmed a murder conviction. The court ruled at e instruction given by e trial court on self defense was actually more favorable to e defendant an e law allowed. The Alabama Supreme Court ruled at e facts on e record did not make out a case for self defense. The decedent retrieved a rifle from his home in response to an assault upon e decedent s sons by e defendant. The decedent approached e defendant, stopped wiin a few feet of him, was standing wi his gun on his shoulder, and began to speak wi his wife at e moment e defendant shot him. The Supreme Court stated at e defendant cannot claim he acted in self defense where e decedent made no overt attempt or demonstration toward e defendant indicating he was in e act of assaulting e defendant wi his gun. Therefore, e defendant s claim at he shot e decedent in self defense had no merit. 13.There are variations in e definition of deadly force in statutes, court decisions, model policies, and model codes. Some auorities limit e result to dea while e more common definition allows for bo dea or serious physical injury, great bodily harm, grave injury or similar language. Some auorities require at dea in fact occur, while e more common requirement is only at dea or serious physical injury be likely to occur. The likelihood of dea or serious injury is described in a variety of ways: strong probability, substantial risk, readily capable, reasonably likely, etc. Some auorities require at e person intend to produce dea or serious injury while oer auorities do not require a state of mind at all. The Model Penal Code is a popular standard for deadly force in e federal courts. Several federal courts in civil cases have borrowed language from e Model Penal Code and defined deadly force as force at creates a substantial risk of causing dea or serious bodily injury. The Model Penal Code is a standard for criminal cases. Some federal courts, wi at in mind, have modified e Model Penal Code definition and applied only part of it to civil cases. Those courts have excised e mens rea standard from e Model Penal Code definition, since e Four Amendment is an objective standard whereby e intent of e officer is irrelevant. E.g., Smi v. City of Hemet, 24

26 394 F.3d 689 (9 Cir. 2005) (en banc) ( We simply look to e objective part of e [Model Penal Code 3.11] test: wheer e force employed creates a substantial risk of dea or serious bodily injury. Id. at 706); Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5 Cir. 1998) (e court held at e definition of deadly force as at force at carries wi it a substantial risk of causing dea or serious bodily harm was clearly established in e Fif Circuit); Estate of Phillips v. City of Milwaukee, 123 F.3d 586 (7 Cir. 1997) ( For a particular application of force to be classified as deadly, it must at least carry wi it a substantial risk of causing dea or serious bodily harm. Id. at 593.); Mattis v. Schnarr, 547 F.2d 1007, 1009 n.2 (8 Cir.1976) (en banc) (vacated on oer grounds by Ashcroft v. Mattis, 431 U.S. 171 (1977)) (The court adopted e full Model Penal Code deadly force definition in a civil claim under 42 U.S.C We use e term in is opinion as it is used in e Model Penal Code 3.11(2) (1962): deadly force means force which e actor uses wi e purpose of causing or which he knows to create a substantial risk of causing dea or serious bodily harm. Purposely firing a firearm in e direction of anoer person or at a vehicle in which anoer person is believed to be constitutes deadly force. ), vacated as moot sub nom., Ashcroft v. Mattis, 431 U.S. 171 (1977). Robinette v. Barnes, 854 F.2d 909, 912 (6 Cir. 1988) (same). But see Ford v. Childers, 855 F.2d 1271, 1275 (7 Cir. 1988) (en banc) (An Illinois statute defined deadly force as force likely to cause dea or great bodily harm. The Childers court wiout passing in e issue noted at e statute seems to have passed constitutional muster by e U.S. Supreme Court in Tennessee v. Garner, 471 U.S. 1, 17 n. 18 (1985)). The U.S. Supreme Court in Scott v. Harris, 550 U.S. 372, (2007), quoted e deadly force definition proposed by e appellant: any use of force which creates a substantial likelihood of causing dea or serious bodily injury. However, e Scott Court expressly refused to apply at definition. The Court instead ruled at e definition of deadly force was irrelevant. The Court stated: Garner did not establish a magical on/off switch at triggers rigid preconditions whenever an officer's actions constitute deadly force. Garner was simply an application of e Four Amendment's reasonableness test,... to e use of a particular type of force... we must still slosh our way rough e factbound morass of reasonableness. Wheer or not Scott's actions constituted application of deadly force, all at matters is wheer Scott's actions were reasonable. (citation omitted). 14.Elliot v. Leavitt, 99 F.3d 640 (4 Cir. 1996). In Elliot, e court of appeals reversed e district court s denial of e police officers motion for summary judgment. The officers had performed a cursory pat down search of e intoxicated suspect before cuffing his hands behind his back and placing him in e police cruiser. The suspect, who was slender and wiry, as able to release e seat belt and grab a gun at was on his person but was not detected during e frisk. He had e gun in his hands, which were still cuffed behind his back. The officers ordered him to drop e gun, when he refused to comply e officers fired a total of 22 rounds, killing e suspect. The court found e shooting to be reasonable. The court furer stated at e number of rounds at e officers shot does not suggest at ey shot mindlessly, but raer indicates at ey sought to ensure e elimination of a deadly reat. The court rejected e argument of e plaintiff at because e suspect was intoxicated he somehow was less of a reat. The court stated: No citizen can fairly expect to draw a gun on police wiout risking tragic consequences. And no court can expect any human being to remain passive in e face of an active reat on his or her life.... Before employing deadly force, police must have sound reason to believe at e suspect poses a serious reat to eir safety or e safety of oers. Officers need not be absolutely sure, however, of e nature of e reat or e suspect s intent to cause em harm--e 25