Unnecessary Police Escalation Should Not Justify The Use Of Deadly Force
Police shootings in recent weeks (and months and years) remind me of Rockwell v. Brown, an appeal decided in 2011 while I was still clerking for now-retired Honorable Harold R. DeMoss, Jr. on the United States Court of Appeals for the Fifth Circuit. The decision is worth a read, particularly Judge DeMoss’s short concurrence. The case provides insight into how many police officers (even upstanding and well-meaning officers) approach tense situations and how qualified immunity law protects them from what are often times avoidable bad decisions.
The Sad Facts of Rockwell
Rockwell involved a potentially suicidal, mentally ill 27-year-old man who had not committed a crime but who was having a schizophrenic episode and barricaded himself in his bedroom at his parents’ house. While he was in a state of distress and making outbursts, his parents called (as they had done on prior occasions) to have him safely transported to a mental facility for observation and care. When the police arrived, however, he refused to come out of his room. The officers deemed his unstable behavior a suicide threat and decided, over the parents’ protests, to break down his bedroom door with weapons drawn so they could restrain him and “save” him from himself.
Unsurprisingly, their armed forced entry caused the schizophrenic and bipolar young man to run at them with a knife. At that moment the police officer’s perceived a threat of serious bodily harm to themselves and shot him dead.
Qualified Immunity Law
Under existing qualified immunity law, the circumstances leading up to the officers’ forced entry simply do not matter. Quoting from the Rockwell majority decision:
“An officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm to the officer or to others. The excessive force inquiry is confined to whether the officer or another person was in danger at the moment of the threat that resulted in the officer’s use of deadly force. Regardless of what had transpired up until the shooting itself, the suspect’s movements gave the officer reason to believe, at that moment, that there was a threat of physical harm.” [Internal citations and marks omitted; emphasis added.]
Because the schizophrenic 27-year-old’s actions the moment after the officers broke down his bedroom door caused them to reasonably perceive a threat of serious harm, the Court of Appeals was compelled to disregard the officers’ unnecessary escalation of the circumstances during the 30 minutes prior to their breach and grant them qualified immunity. The parents’ civil lawsuit claiming excessive force, assault and battery, unlawful entry, and warrantless arrest was dismissed without reaching trial.
A Call for Better Officer Training
In his concurrence, Judge DeMoss called on the law enforcement community to implement better training and other protocols to help avoid creating the need to use deadly force that, in most cases, the law will eventually deem justified.
In Judge DeMoss’s words:
“Patience, judgment, and discretion are highly important virtues for law enforcement personnel to possess; in my judgment the officers exercised none of them in this case. While their conduct is not legally actionable, neither is it admirable. I urge the City of Garland police department and other law enforcement agencies to better prepare officers for foreseeable volatile situations involving mentally ill citizens and to practice negotiation techniques or less-than-lethal arrest procedures that will not needlessly risk the lives of those who seem to be mentally unable to control themselves. Insanity is a defense our legal system offers to mentally ill defendants; it is not an invitation for law enforcement personnel to take unnecessary actions that heighten the risk of harm or death to mentally ill suspects.”
Unfortunately, many of the police shootings of unarmed individuals (and even some armed individuals) in recent years likely could have been avoided had the officers trained to use different tactics designed to diffuse instead of escalate tense situations.
Should Qualified Immunity Be More Limited?
There are enough dangerous situations in regular police work where the officers have no way to avoid an immediate threat of serious harm to themselves or bystanders. In these situations, it is unreasonable to expect the officers to stand down. The qualified immunity doctrine exists in part for that reason – to protect well-meaning officers when they make snap decisions in volatile and dangerous situations.
That said, it should not be a radical idea for police officers (and, practically speaking, police departments and their insurers) to have potential liability for civil lawsuits when they unnecessarily escalate a situation to the point where they become justified in using deadly force. In these circumstances, officers and departments should know – based on specific training – that they are not permitted to act in a manner that could foreseeably turn a mildly or moderately intense situation into one that justifies their use of deadly force.
A slight modification to qualified immunity law could provide just the incentive on a departmental level to incentivize de-escalation training and avoid the unnecessary use of deadly force by police officers, whether or not such force is justified in the moment.