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Use of Deadly Force Pre-Shooting Conduct and the 21 Foot Rule

Jack Ryan

A circumstance that officers often face is the suicidal individual who, in essence, holds him or herself hostage. These are difficult cases. While such cases require a police response, officers sometimes are caught between a rock and hard place. Much has been written about the concept of “suicide by cop” but the fact remains that officers are often called to deal with these situations and are expected to prevent the suicide without causing injury or death. At times this is an impossible task. A common denominator that runs through this type of case is an attack on the officer’s tactics in approaching the individual. While at the moment the officer shot, he or she was in danger, the theory is that the officer did something that was tactically incorrect in the approach that contributed to the need to use deadly force.

Estate of Larsen v. Denver, serves as an example. On April 15, 2003, Lyle Larsen called 911 and reported that he was going to kill himself or someone else. Officers responded to the scene and found Mr. Larsen holding a knife that was more than a foot long. Mr. Larsen was standing on the high side of a front yard which was above the sidewalk. Officer Murr and Brase both ordered Larsen to drop the knife. It initially appeared that Larsen was about to comply, but then he suddenly raised the knife over his head. The officers reported that his eyes got “as big as the size of quarters” and Larsen turned toward Officer Murr and pointed the knife at him. The officers continued ordering Larsen to drop the knife. As he stepped toward Officer Murr, Murr used deadly force, shooting and killing Larsen. At the time of the shooting Murr and Larsen were separated by anywhere from 7-20 feet.

While there was no question that Officer Murr’s use of deadly force was necessary at the time he fired, the issue raised by the plaintiffs’ was whether Officer Murr’s actions leading up to the need to use deadly force had, in some way, created the need to use deadly force.

The Estate contended “that Officer Murr contributed to the deadly confrontation because he did not wait for and failed to request backup assistance, failed to retreat or take a defensive position behind a truck or light pole, failed to ‘talk Mr. Larsen down,’ placed himself too close to Mr. Larsen, failed to use other means to disarm Mr. Larsen (i.e., with his baton), failed to request for a member of the SWAT team to use less-lethal weaponry, failed to request other assistance from officers trained in crisis techniques, and failed to call for a less lethal weapon to be provided for his own use. In support of such contention, the Estate proffers the opinion of its expert, H. Ellis Armistead, that Officer Murr had other options available other than use of deadly force.”

The court utilized the three part Graham test in order to analyze Officer Murr’s actions. The court added a fourth prong utilized by some courts. “In this analysis, several non-exclusive factors are considered — the severity of the crime at issue, whether the suspect posed an immediate risk of harm to an officer or another person, whether the suspect was evading arrest, and whether the officer’s own conduct created the need to use any force.”

In response to the plaintiff’s allegations that Officer Murr actions before the shooting contributed for deadly force, the court responded: “This may be true, but for purposes of this analysis, the Court does not determine whether Officer Murr’s response was the best or most desirable response under the circumstances, only whether Officer Murr’s belief and response was a reasonable one. Thus, the question is not whether Officer Murr could have used less-lethal alternatives, but whether it was reasonable for him to use lethal force under these circumstances.” Thus, while the court considered Officer Murr’s pre-shooting conduct, the court judged this conduct against the objective reasonableness standard and reiterated the position taken by all federal courts which indicates that officers are not required to use the “least” amount of force necessary or the “best” alternative, they are required to do that which is objectively reasonable.

After reviewing Officer Murr’s conduct, the court concluded that his actions were reasonable. While there was no need for the court to go any further in its opinion, the court made several instructive comments on other issues raised by the lawsuit. The plaintiff’s alleged that the city’s failure to enforce the “21 foot rule” policy led to Mr. Larsen’s death. The court concluded that the 21 foot rule is a “formula used to aid an officer in an assessment of risk” and is not a policy. The plaintiff also contended that the agency failed to provide patrol officers with less-lethal options at the time of this death, specifically taser, bean bag and pepper-ball. While some other courts have indicated that it is beyond the federal courts jurisdiction to give law enforcement agencies a laundry list of weapons that must be provided to officers, the court here did not take that approach. Instead, the court rejected this claim asserting that there was no evidence in the case to suggest that Officer Murr’s response to Mr. Larsen would have been different if he had these options available.


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