The 4th Amendment & Deadly Force - Training -

The 4th Amendment & Deadly Force

Officers don’t have to exhaust all available force options



Laura L. Scarry | From the November/December 2005 Issue Tuesday, November 29, 2005

Assume a police officer faces the following deadly forcesituation: He responds, along with two other officers, to a residence as a result of a 911 call from the homeowner. Dispatch reports the homeowner’s son threatened her with a steak knife, but she was able to escape from the residence.

When all three officers arrive, the first officer meets with the homeowner outside the residence. She tells him she suspects her son is abusing cocaine and that he is threatening to commit suicide. She says she wants her son transported to a mental-health hospital for an evaluation. She also tells the officer she does not know if her son is still armed and that he may now be in the basement.

To further assess the situation, the officers enter the house in an attempt to establish a dialogue with the individual. In doing so, they observe the individual standing at the bottom of the stairs leading to the basement holding a steak knife. The first officer takes his firearm out of its holster. He has no other weapons—no baton, Taser or pepper spray—on his person.

The first officer tries to determine why the individual is distraught; however, as the individual talks, he keeps moving to the side, further into the basement away from the officers’ view. In response to the individual’s movements, the second and third officers, who carry firearms, a Taser and a canister of pepper spray, exit the residence to determine whether doors or windows can offer a better view of the individual, if other individuals are present and if the individual has access to other weapons.

Immediately after the second and third officers leave the first officer alone in the residence, the individual reappears at the bottom of the stairs armed with the knife raised in a stabbing position. He is enraged and suddenly leaps up the stairs in two hops, yelling that he is going to kill the officer. The officer is utterly surprised as he rapidly steps backward, raising his weapon in the direction of the threat and shooting five times. Two shots hit the body, and the individual dies moments later.

Obviously, this imperfect scenario wrought with tactical errors could result in a civil rights lawsuit against the officers and the governmental entity that employs them. Typically, these types of civil lawsuits are filed in federal court under 42 U.S.C. § 1983 (see “The Statute,” p. 75) alleging the officers and governmental agency violated the individual’s rights under the Fourth Amendment to the United States Constitution. Obviously, the defense will state no constitutional violation occurred. Is the defense correct?

The 4th Amendment
A police officer’s successful use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable.1 The fact-specific nature of whether an officer’s use of force is unreasonable or excessive depends on the totality of the circumstances surrounding the encounter.2 Further, the issue of whether an intentional use of deadly force by a police officer is permissible under the Fourth Amendment requires an objective reasonableness inquiry.3

Additionally, the particular use of force must be judged from the perspective of a reasonable officer on scene, rather than with 20/20 hindsight.4 Moreover, any judgment must allow for the fact that police officers are often forced to make split-second

judgments—in tense, uncertain and rapidly evolving circumstances—about the amount of force necessary in a particular situation.5

When an officer believes a suspect’s actions place them, their partner or those in the immediate vicinity in imminent danger of serious bodily injury or death, the officer can reasonably exercise the use of deadly force.6 Typically, if the suspect threatens an officer with a weapon, that risk has been established.

In the hypothetical scenario presented above, the attorneys representing the shooting victim might argue that the police officer who fired the fatal shot should have carried other weapons on his person or, if the city policy did not mandate all officers carry Taser and/or pepper spray, the city should have established such a policy. Surprisingly, law enforcement trainers and top-level administrators have fallen victim to this way of thinking. However, as discussed below, there is no constitutional mandate that officers carry or use other non-lethal weapons before resorting to deadly force when confronted with the same.

Of course, in retrospect it’s easy to say the police officers should have waited for a supervisor or a SWAT team, used some other maneuvers or carried other weapons, but Graham v. Connor makes it clear that the Fourth Amendment does not require second-guessing if a reasonable officer making rapid decisions under uncertainty perceived a need to act.2 This type of armchair quarterbacking simply has no relevance to the reasonableness inquiry under the Fourth Amendment.

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Laura L. ScarryLaura L. Scarry, Law Officer's Legal Eagle columnist, is a partner in the law firm of DeAno & Scarry, with offices located in Wheaton and Chicago, Ill.


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