BB&K Police Bulletin: Use of Deadly Force: Officers’ Pre-Shooting Conduct Included in the Totality of Circumstances Test Surrounding Use of Deadly Force

by Best Best & Krieger LLP

Overview: Deputies shot and killed Shane Hayes inside his home. His daughter filed suit against the deputies and the county for excessive force, Fourth Amendment violations, negligent wrongful death and claims against the county in addition to her own 14th Amendment rights. The district court granted defendants’ motion for summary judgment. The Ninth Circuit affirmed in part, reversed in part, and remanded in part. The court found no violation of Hayes’ or his daughter’s constitutional rights. The court reversed and remanded the daughter’s claims to decide if she has standing to assert survival claims based on alleged violations of Hayes’ Fourth Amendment rights. Finally, the court remanded the matter to the trial court on the negligent wrongful death cause of action finding that a jury should decide if the force used was unreasonable.

Training Points: This case adds yet another layer of complexity to when officers are justified in using deadly force in possible suicide situations. What officers did before using force now will be considered in whether they acted reasonably at the time they used force. When faced with a suicidal subject, and if time permits, officers should thoroughly investigate whether there have been previous calls regarding the suicidal subject and obtain sufficient information from witnesses or through records about the suicidal subject, including previous suicidal tendencies, whether weapons were involved, current access to weapons, and whether the subject had used alcohol and/or drugs within 24 hours prior to the response.

Courts evaluate the totality of the circumstances when determining whether an officer’s use of deadly force is objectively reasonable, including:

  • the severity of the crime at issue;
  • whether the suspect poses an immediate threat to the safety of the officers or others (most important factor);
  • whether the suspect is actively resisting arrest or attempting to evade arrest by flight;
  • the level or type of force used;
  • the availability of less severe alternatives;
  • the suspect’s mental and emotional state; and
  • the officer’s pre-shooting conduct.

Officers should follow their agency’s guidelines as it pertains to providing the suspect with a warning before using deadly force and whether such a warning is feasible.

Summary Analysis: In Hayes v. County of San Diego, a deputy responded to a domestic disturbance call and spoke to a woman, who identified herself as Hayes’ girlfriend. The girlfriend told the deputy: (1) she and Hayes had been arguing about his attempt to commit suicide by inhaling exhaust fumes from his car; (2) there was no physical altercation between them; (3) she was concerned Hayes would harm himself since he had done so before; and (4) there were no guns in the house. She did not tell the deputy Hayes might be armed with a knife. The deputy did not ask her how Hayes had attempted suicide before nor did he know Hayes had previously stabbed himself with a knife. The deputy also did not ask if Hayes was under the influence of alcohol or drugs.

A second deputy arrived and together, based upon their concern Hayes might harm himself, they entered the residence to check on his welfare. Prior to entering, they did not check if there were previous calls regarding Hayes and were unaware Hayes had attempted suicide with a knife four months earlier.

The deputies entered and saw Hayes with his right hand behind his back. They ordered Hayes to show his hands. Hayes raised both his hands. Deputies observed a large knife pointed tip down in Hayes’ right hand. Believing Hayes was a threat to his safety, the deputy immediately drew his gun and fired two shots at Hayes. Neither deputy ordered Hayes to stop. Four seconds elapsed from the time the deputy ordered Hayes to show his hands to the time the first shot was fired. Hayes’ girlfriend, who witnessed the shooting, testified Hayes was walking towards the deputies with the knife raised at the time of the shooting but was not “charging” at the deputies and had a “clueless” expression. Further, she testified that just before the shooting, Hayes said, “you want to take me to jail or you want to take me to prison, go ahead.”

The court found the deputies’ use of deadly force was not objectively reasonable. The court pointed out that Hayes had committed no crime and there was no evidence he was actively resisting arrest or attempting to evade arrest. Further, Hayes was complying with the deputies’ orders when he raised the knife and posed no clear threat at the time he was shot without warning. The court highlighted that the mere fact that a suspect possesses a weapon does not justify the use of deadly force. The court found it significant that Hayes was given no warning before the deputies shot him. Finally, the court held an officer’s pre-shooting conduct is properly included in the totality of circumstances surrounding his/her use of force and therefore, an officer’s duty to act reasonably when using deadly force extends to pre-shooting conduct.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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