Deadly force.

The subject is frequently in the news and often becomes the subject of even local conversation. When a law enforcement officer uses deadly force against someone it amounts to a seizure of that person, and the Constitution prohibits unreasonable seizures. So the simple question posed in such a case is whether deadly force was reasonable under the circumstances of the case.

The Supreme Court in its 1989 Graham v. Conner decision said that whether the use of deadly force is reasonable “is not capable of precise definition or mechanical application.” The facts and circumstances of each case decide whether the use of force was reasonable.  So what is the basic rule for when an officer may use deadly force?

At common-law (the law that followed our forefathers from England), and the law in most of the states until Tennessee v. Garner was decided by the Supreme Court in 1985, an officer could kill a fleeing felon. Any fleeing felon. In Garner the Court limited the law, finding that “where a suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” In that case, a police officer shot an unarmed burglar in the back of the head as he climbed a fence to escape. Reasonable? Not so said the Supremes.

I remember reading a news article about an officer who had shot and killed a man at the scene of a domestic violence call. He would not be charged with any crime, meaning that his actions were deemed reasonable by the prosecutor. The officer’s body camera video shows the exchange. The deceased was carrying a weapon that the officer saw, and then ordered him to drop. He did not drop the gun. Shots were fired and there was shouting and it seemed impossible to determine without more exactly what happened.

“And it was dark” (as my pal JD would say). Darkness adds to the confusion in such cases. The officer was trained in the use of his weapon and it may be too easy to second guess his or her actions, but in the video, the deceased had a gun. That gun represents the ultimate threat to the officer’s safety as it would to yours or mine. In the dark, when ordered to drop his weapon he refused and the officer must have then believed that he would fire that gun. That seems like a reasonable conclusion to me and a jury would probably find that the policeman acted reasonably to protect himself and others from the man with the gun.

Look – wouldn’t we all want a cop to protect us from a man with a gun who refused to put it down?

The Garner decision focuses our attention on whether suspects pose an ongoing danger, regardless of whether they are threatening anyone in a specific way. Consider what the Court said:

“When the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”


In rural Idaho, officers killed Jack Yantis, a rancher who had been called to put down a bull that had been struck by a car. You have likely heard the story and know that close relatives who witnessed the event have called it murder. After Jack was shot and killed, his wife and nephew were arrested, put on the ground and handcuffed. Each of these folks was “seized” for purposes of the constitution. Were the actions of the officers reasonable? Each case is different and each may result in a different conclusion. The state and feds investigated the situation but no criminal charges were ever filed. The use of deadly force by officers, whether in Washington DC or rural Idaho remains murky ground. The civil case which followed the “non-action” by the Attorney General’s Office resulted in a settlement of the matter, but that was just money. Neither officer was required to account for his actions in shooting Jack.

It’s not that officers are never held to account criminally for their conduct when they use deadly force, but it doesn’t happen very often. Maybe it shouldn’t. After all, the job law enforcement officers do on a daily basis seems more and more dangerous. We want and need to trust their instincts for the most part.

You may recall a news report in which officers used a Taser against a man twenty times in less than a minute. Think 50,000 volts against a man who did NOT have a weapon and had been told by officers that they were taking him to the emergency room for treatment. He was high on cocaine and highly irrational. On arrival at the ER, he kicked out a window in the patrol car. As he tried to escape (did I mention he was handcuffed?), they unleashed their electronic warfare and in the end, he died. And that was not even deadly force. The Taser is not intended to kill, but rather to immobilize. Even when the force used is not intended to be deadly, the question of whether officers acted reasonably will determine whether their actions can be the basis for some criminal or civil case.

I can’t forget that kid yelling “Don’t taze me dude!”

And there is the problem for each of us. We need to trust that law enforcement officers start with the correct mindset: protect, serve, lead. Hopefully they never have to use a weapon to protect themselves or anyone else, but if they do use deadly force, it has to be reasonable under the circumstances. Any force used has to be reasonable. Not reckless and certainly not unnecessary.

Murky stuff here.