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Use of Deadly ForcePre-Shooting Events Impacting Reasonableness of Shooting

Jack Ryan

An on-going issue in deadly force cases is how courts will review the totality of circumstances surrounding the shooting and how officer tactics and actions before the shooting may have an impact on the reasonableness of the use of deadly force. Some of the federal circuits view the “totality of circumstances” as only that moment in time where the officer pulls the trigger, analogized to one frame in a series of film frames. Other circuits view several of the frames leading up to the ultimate use of force. In circuits taking this second view, officer tactics which “create the need” to use deadly force, or even increase the likelihood that a violent confrontation will occur may impact the reasonableness of the use of force.

The United States Court of Appeal for the 10th Circuit has reiterated their position that conduct which is immediately connected to the ultimate use of force will be considered in the reasonableness analysis.

In Jiron v. City of Lakewood, 2004 U.S. App. LEXIS 26460 (10th Cir. 2004), the 10th Circuit Court of Appeal reviewed the granting of summary judgment in favor of an officer who used deadly force on a fifteen year-old girl with a knife.

Officer Margaret Halpern responded to a call to investigate two drunk girls who were suspected of stealing a purse. Upon her arrival, one of the girls, 15-year-old Jessica Jiron, fled into her sister’s apartment. Jessica a 6-10 inch kitchen knife and fled into a rear bedroom of this second story apartment. Initially Officer Halpern called for backup and waited, however when she heard Jessica attempting to escape out of a window, she entered the bedroom. Officer Halpern observed that Jessica had already managed to cut the window screen. The officer told this young woman to stop at which time Jessica went after the officer causing Halpern to retreat back to the hallway. Jessica then returned to the bedroom and again returned to the bedroom. Officer Halpern continually ordered Jessica to come out into the hallway and drop the knife.

At some point during this standoff, prior to the arrival of other officers inside the apartment, Jessica came out into the hallway holding the knife to her chin and indicating she was going to kill herself. She was no longer hysterical but now had a “fixed, determined stare on her face.” Jessica then started toward Officer Halpern prompting the Officer to tell Jessica that she would have to “kill her” if she did not stop. Jessica responded: “Okay, kill me.” When Jessica moved to within five feet of the officer she raised the knife over toward Officer Halpern. Officer Halpern then fired at Jessica, wounding her.

In a subsequent civil rights lawsuit brought against the officer, the federal trial court granted summary judgment in favor of Officer Halpern finding that the officer’s action were reasonable as a matter of law. On appeal, Jessica challenged, among other things, that the officer’s actions in failing to wait for backup and entering the bedroom, created the need to use deadly force and even if at the moment of the shooting the officer’s action was justified, the pre-shooting conduct made the shooting unreasonable.

In analyzing this case, the United States Court of Appeal for the 10th Circuit found that Officer Halpern’s actions leading up to the shooting were immediately connected to the use of force and thus had to be considered as part of the totality of circumstances. In looking at the officer’s decision to go to the bedroom without waiting for backup; the court found these actions to be reasonable based upon the particular facts that the officer faced her. The court specifically cited the fact that Jessica was armed with a knife and on the verge of escaping into public where other officers as well as any other person on the outside of the house may be placed at risk. The court concluded that “Officer Halpern adequately performed her duties as a reasonable law enforcement officer by taking steps to prevent an armed and agitated suspect from escaping.

A similar type of review occurred in Deluna v. City of Rockford, Il., 2004 U.S. Dist. LEXIS 25292 (N.Dist. Ill. 2004) which was decided on December 14th.

In Deluna, an officer had responded to a 911 call of a domestic disturbance involving a subject who was known to the police as having assaulted his wife in the past; was known to possess firearms and was known to be violent in police custody. It was also known to the police that children were present.

Officer Peraza arrived at the scene and was alone when he confronted the subject in an area where Officer Peraza was unfamiliar. Officer Peraza began commanding DeLuna at gunpoint to put his hands up and stop. DeLuna continued toward the officer, indicating that he had something for Officer Peraza and inviting the officer to shoot him.

Officer Peraza continued backing up, which the court pointed out he was not obligated to do, until he lost his footing and began falling backward. DeLuna then pulled his hand from behind his back and lunged at the officer from 6 feet away prompting the officer to shoot DeLuna.

In the ensuing lawsuit, the court refused to find the shooting unreasonable simply because Officer Peraza had not waited for backup officers to arrive. The court opined that if the officer had hesitated he may have put others, DeLuna’s wife and children, at risk of violence which could have led to a different lawsuit. The court therefore entered summary judgment in favor of the officer.

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