By Ryan Dreveskracht
A. Use of Deadly Force in the Civil Context
On the night of October 3, 1974, a fifteen year old, unarmed boy broke a window and entered an unoccupied residence in suburban Memphis, Tennessee. Two police officers, called to the scene by a neighbor, intercepted the youth as he ran from the back of the house to a six-foot fence in the back yard. Using a 38-calibre pistol loaded with hollow point bullets, one of the officers shot and killed the boy from a range of 30 to 40 feet as he climbed the fence to escape. After shining a flashlight on the boy as he crouched by the fence, the officer identified himself as a policeman and yelled “Halt.” He could see that the fleeing felon was a youth and was unarmed. As the boy jumped to get over the fence, the officer fired at the upper part of the body, as he was trained to do by his superiors at the Memphis Police Department. He shot because he believed the boy would elude capture in the dark once he was over the fence. The officer was taught that it was proper to kill a fleeing felon rather than run the risk of allowing him to escape.
The boy’s father brought a civil rights suit against the City under 42 U.S.C. § 1983 to recover damages for wrongful death caused by the officer’s use of excessive force and the Memphis Police Department’s policies regarding the use of deadly force. Following a bench trial, the District Court dismissed the case against the officer and the municipality, holding that both the officers and the City acted in good faith reliance on a Tennessee law that allows an officer to “use all the necessary means to effect the arrest,” including death, if the suspect was thought to have committed a felony. The Sixth Circuit upheld the decision, based, in part, on the fact that the Tennessee law at issue had been in place for decades, and was codified common law in numerous jurisdictions.
On appeal to the Supreme Court, Justice White wrote for the majority that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable”:
It is not better that all felony suspects die than that they escape. Where the 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
In addition, the Court held that this law made little sense as a policy matter. Police departments had long ago abandoned the idea (at least in practice) that deadly force should be the default option for stopping non-violent offenders. The common law rule, in fact, was a relic of an age where most crimes were punishable by death and most felonies were violent ones. However, we were now in an age of due process, where we had trials and did not “shoot first and ask questions later.” The opinion does not condone the offender in victim but it does, in a way, encourage us to sympathize with him: he may have deserved a trial and punishment, but he did not deserve to die.
Less than four years later, in Graham v. Connor, the Court explicitly articulated the test for determining whether the force used to effect a particular seizure is reasonable: “a careful balancing of the nature and quality of the intrusion on the individual’s [right to life] against the countervailing governmental interests at stake.” This balancing test entails consideration of the totality of the facts and circumstances in the particular case, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Importantly, the test articulated by the Graham Court is objective:
[T]he “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.
B. Criminal Prosecution of Police Officers
As potent as Garner and Graham were, they were also limited. Again, these cases were § 1983 civil rights suits that forced the Court to decide what amount of force counted as “reasonable” under the Fourth Amendment. However, deciding the constitutional standard in a civil action—where the plaintiff is seeking money from the defendant—did not disturb what the standard had to be for state criminal law prosecutions against officers. States still have the authority to pronounce under what circumstances police can justifiably use deadly force, and so avoid punishment under state law.
In other words, the decision did not require that Tennessee change its statute that permitted police to shoot at a fleeing felon, nor did it require any other state to abandon the common law rule. States still have the power to decide what defenses officers can have, and the scope of those defenses. A state can decide to have a “stand your ground” law, or it can decide not to have one, but neither is required or prohibited by the Constitution. States can legislate that officers are never allowed to use deadly force, or they can legislate that officers are always allowed to use deadly force if they feel that it will help them capture the suspect.
Civilly, the latter may be unconstitutional as applied, but the law will always excuse a compliant officer from criminal conviction. Michigan and Alabama, for example, still permit their police to use deadly force if it is necessary to arrest a fleeing felon, without reference to any considerations related to the type of felony at issue or the danger the suspect poses to the officer or the public. In these states, as in Garner, if a police officer witnesses any felony—a drug deal, a car break-in, or simply the passing of a bad check—and can only apprehend the suspect by killing him, the officer will not be criminally convicted by doing so.
Michigan and Alabama are extremes, however. On the other side of the isle are states like Connecticut and North Carolina, which only authorize deadly force if the officer reasonably believes it essential to catch the suspect and when it is actually necessary to make an arrest. In other words, officers’ subjective intent do not govern whether they are subject to being charged with committing a crime—only homicides committed by the police that are objectively justified under the circumstances are automatically considered lawful.
C. The Use of Deadly Force in Washington State
Antonio Zambrano-Montes was shot and killed by police officers in Pasco, Washington, on February 10, 2015. A video capturing the fatal incident shows Mr. Zambrano-Montes running from three police officers across a busy intersection, with police officers opening fire as Mr. Zambrano-Montes started to cross the road and was raising his hands. The police officers chased after Mr. Zambrano-Montes onto the sidewalk and, facing him, discharged several further shots. Of the 17 bullets aimed at Mr. Zambrano-Montes, five to six struck him, causing his death. He was unarmed at the time of the shooting. When questioned about the incident, officers contended that they were threatened for their lives because Mr. Zambrano-Montes was threatening to throw rocks at them. In justifying his decision not to criminally charge the officers, the prosecutor stated that “he was limited by state law and what he could prove in court” in that “officers are generally justified in the use of deadly force unless there is a presence of malice or if the officers were not acting in good faith.” In other words: the officers say they were scared for their lives and we have to take them at their word.
As this case demonstrates, Washington State has a law that is more susceptible to abuse than the Connecticut and North Carolina statutes. In Washington, an officer will not “be held criminally liable for using deadly force” if he or she acts “without malice and with a good faith belief that such act is justifiable.” This is a purely subjective standard—it asks the jury and the prosecutor to get into the officer’s brain and determine if he or she meant to harm the suspect, regardless of the objective reasonableness of that belief. This standard makes it almost impossible for prosecutors to bring criminal charges, even if they conclude that an officer objectively committed a wrongful killing.
During the 2016 regular legislative session, the Legislature established the Joint Legislative Task Force on the Use of Deadly Force in Community Policing through the passage of Engrossed Substitute House Bill 2908. The legislation charged the Task Force with reviewing and making recommendations on Washington State’s use of force law. Over the next year, the Task Force reviewed U.S. Supreme Court cases, state statutes, and over 130 pages of memoranda and letters on charging decisions written by prosecutors in Washington. The resultant report was recommended the following change to Washington State’s use of force statute, as follows:
A public officer or peace officer shall not be held criminally liable for using deadly force [deleting: without malice and with a good faith belief that such act is justifiable pursuant to this section] if a reasonable officer would have believed the use of deadly force was necessary in light of all the facts and circumstances known to the officer at the time.
In recommending this change, the Task Force explicitly sought to bring Washington State into line with Garner and Graham:
This test is used because “[e]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton v. California, 496 U.S. 128, 138 (1990). This objective good faith standard continues to be used in police shootings, which court’s recognize “are often the most difficult–and divisive–cases that our legal system and society encounter.” Estate of Diaz v. City of Anaheim, 840 F.3d 592, 606 (9th Cir. 2016). Washington’s current use of force statute, which was adopted shortly after Garner, applies both an objective “good faith” standard and a subjective “malice” standard. Subsequent to the enactment of our current statute, the United States Supreme Court counseled that, with respect to the lawfulness of an officer’s use of force, “subjective concepts like ‘malice’ and ‘sadism’ have no proper place in that inquiry.” Graham v. Connor, 490 U.S. 386, 399 (1989). Removing “malice” and defining “good faith,” as whether a reasonable peace officer, relying upon the facts and circumstances known by the officer at the time of the incident, would have used deadly force, renews our commitment to the Fourth Amendment standard. Further, the phrase “good faith” is an appropriate label for this definition within a criminal charging standard as opposed to a civil liability standard. A police officer’s intent should be relevant and part of the calculation, just not controlling. Stated another way, we want to protect honest mistakes, but not necessarily egregious ones. The definition of good faith contained in this bill is derived from Graham. The calculus of reasonableness contained in the definition makes “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”
D. Next Steps
The Task Force has proposed a solution to Washington State’s use of force statute that (1) removes the de facto immunity from criminal liability for unlawful uses of deadly force by law enforcement. (2) provides an objective standard of review for law enforcement use of deadly force, and (3) protects honest mistakes of law enforcement. Most importantly, the Task Force’s proposal finally brings the state’s standard in line with the U.S. Constitution.
The next crucial step is to breathe life into the Task Force’s recommendation via legislation. Thus far, three bills have been introduced:
· SB 5000, by Senators McCoy, Hunt, and Chase;
· HB 1000, by Representatives Doglio, Appleton, Dolan, Frame, Peterson, Gregerson, Santos, Fey, Sawyer, and Cody; and
· SB 5073, by Senators Frockt, McCoy, Pederssen, Hasegawa, Darnielle, Chase, Hunt, and Wellman.
But the bills will get nowhere without being scheduled for hearings—and this takes work from all of us. Please contact Senator Padden and ask that he schedule SB 5073 and SB 5000 for a hearing. He can be reached at: Mike.Padden@leg.wa.gov. Senator Padden is the Chair of Law and Justice Committee. Representative Goodman should also be contacted to schedule a hearing for HB 1000. Roger.Goodman@leg.wa.gov. Representative Goodman is the chair of Public Safety Committee.
Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice includes civil rights litigation against police officers for use of deadly force. He can be reached at (206) 909-3842 or firstname.lastname@example.org.