Information provided for educational purposes only and is not intended as legal advice. Please seek your legal department
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Use of Force: Firearms and Related Issues
Less Lethal Ammunition:
Bell v. Irwin, 321 F. 3d. 637 (7th Cir., 2003):
Facts: Police were called initially to a domestic dispute. When the
police arrived the couple said everything was fine and that they wanted to
be left alone, so the police left. Forty minutes later, the wife was knocking
on neighbors doors asking for help saying that her husband was drinking
and tearing up their house. A neighbor called the police and the police
arrived at the residence. A background check of the husband (Bell)
revealed a history of arrests for domestic violence, UUW, obstructing
justice, and driving under the influence of alcohol. The wife indicated that
Bell had attempted suicide; the police could see him in the residence
through a window and could see that he was holding several knives and a
meat cleaver. He threw several knives into the yard in the direction of the
police. He also told the chief of police that he would kill any officer who
entered and then himself. He also said he had nothing to live for, did not
care about anyone’s life either, and would only come out “feet first.” The
police continued to negotiate with Bell and ultimately called for the aid of
the IL State Police (the defendants in this case: Lt. Steven Crow and Sgt.
Mike Irwin). The State Police authorized the use of bean bag rounds if
necessary. Bell opened the door and threatened to blow up his home
using propane and kerosene in tanks…Irwin saw Bell lean towards a tank
with what appeared to be a cigarette lighter (note: as the crime scene was
processed a cigarette lighter was located on the ground outside of the front
door to the home); Irwin then shot Bell with the bean bag rounds in his
arm and torso. The first 3 rounds caused Bell to stagger, so Irwin fired a
fourth round, which brought Bell down. Bell was a moving target when
Irwin fired the fourth round, and that round hit him in the head. He was
taken to the hospital unconscious and treated for his injuries. He sued
under 42 USC 1983 alleging he experienced memory loss as a result of the
bean bag rounds; his wife sought compensation for loss of consortium.
Legal Analysis:
The lower court granted summary judgment in favor of the police defendants.
This court affirmed the decision by the lower court and ruled there were no
material facts in dispute and therefore it was a question for a judge not a jury.
The court stated, “we think Bell should have thanked rather than sued the
officers.” The court noted that the record did not reflect how dangerous bean
bag rounds can be, so it was hard to know if their use should be classified as
deadly force, but the court said they were less lethal than bullets or buckshot.
For this case, the defendants’ acquiesced and the lower court had treated them
as a species of deadly force….therefore this court of appeals did not address this
issue.
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Is there any duty to use all feasible alternatives to avoid Use of Deadly
Force? NO
Will the Court Consider the Totality of the Circumstances, Including
Pre-Shooting Conduct? YES
Deering v. Reich, 183 F.3d 645 (7th Cir. 1999)
Facts: Officer went to pick up 69 yr. old Deering for a misdemeanor
property damage warrant; they went to his farm at 11pm and saw him
sleeping; they woke him up by announcing their presence; Deering got up
with rifle/shotgun; Deering fired a shot; Deputy Reich believed that
Deering was facing him and that another officer had been hit; he shot
Deering after telling him to drop the gun; Deering was hit twice from the
11 shots fired.
Legal Analysis:
The Court ruled that all of the info the police had leading up to the
shooting was relevant
Plakas v. Drinski, 19 F. 3d. 1143 (7th Cir., 1994):
Facts: DUI single car collision—suspect Plakas flees; he returns to the
scene and refused medical attn; arrested for DUI; he escapes from the
police vehicle and fled to the home of his fiancée’s parents; he used a
fireplace poker to threaten the police; one officer was struck on the wrist
as he moved in to try and get a hold of Plakas; Plakas fled the house and
police followed on foot; he invited officers to shoot him and said at one
point that either he or another officer was going to die; he charged police
with the poker and one officer shot and killed him.
Legal Analysis:
The Court ruled: 1) no requirement that officers use all feasible
alternatives to avoid use of deadly force and 2) they will review conduct
leading up to shooting
Porter v. City of Muncie, 2000 U.S. Dist. LEXIS 7385 (S.D. Indiana,
Indianapolis 2000):
Facts: Porter was a 50 yr. old woman with mental issues; she threatened
her husband with a knife and meat cleaver; she was refusing to go the
hospital; police tried repeatedly to get her to drop the knife (while pointing
gun at her); another officer attempted to distract her-that didn’t work; she
began to come at the officer with the knife raised; the other officer fired
two shots, killing her. In the lawsuit, the plaintiff’s expert witness
criticized the officer’s tactics saying the officer shouldn’t have shouted
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commands and shouldn’t have approached her in the manner in which he
did.
Legal Analysis:
The Court rejected the Plaintiff’s claim that the officer should have used a
calm voice instead of shouting commands at Porter; 1) officer did not
violate the 4th amendment; 2) officer not required to retreat when a
subject threatens the officer or others with violence.
Duty to Train/Failure to Train Issues:
Plaintiffs can sue the agency under two basic theories: 1) that there was an
obvious need for training and either there was no training or the training was
insufficient OR 2) that there was a pattern of conduct by officers that would put
the policymaker on notice and the policymaker failed to respond with training
Also, plaintiffs can sue individual officers alleging that there was a sound
training program, but that it was negligently or deliberately indifferently
administered by a particular training officer. In this case, the agency will not be
liable, but the training officer may have liability as an individual.
CITY OF CANTON v. HARRIS, 489 U.S. 378 (1989) is the landmark case for
this area of the law. The US Supreme Court held that “a municipality may be
held liable under Section 1983 for violations of rights guaranteed by the Federal
Constitution, which violations results from the municipality’s failure to
adequately train its employees, only if that failure reflects a DELIBERATE
INDIFFERENCE on the part of the municipality to the constitutional rights of its
inhabitants.”
Jenkins v. Bartlett, 487 F. 3d 482 (7th Cir. 2007)
Facts: An officer was on duty and stopped a vehicle suspected of
drug activity. Larry Jenkins was the driver of the vehicle, the officer
searched him for weapons and was in the process of securing Jenkins
in the squad car when Jenkins fled on foot. The officer then witnessed
Jenkins entering an occupied vehicle and the officer believed Jenkins was
attempting a carjacking. The officer drew his weapon and approached the
vehicle from the front. Jenkins was now behind the steering wheel and the
vehicle was moving towards the officer. The officer believed that the
vehicle swerved to strike him and he was thrown onto the hood of the
vehicle. The officer then fired 9 shots into the vehicle, 7 of which struck
Jenkins. Jenkins died and his mother sued both the officer and the agency.
She sued the officer alleging a violation of the 4th amendment (excessive
use of force); she sued the agency and the chief alleging failure to train
and supervise with respect to use of deadly force on suspects in vehicles.
She pointed to the agency’s own training bulletins for approaching and
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exercising deadly force on suspects in vehicles. She also pointed to past
incidents in which the officers had used deadly force on suspects in
vehicles.
Legal Analysis:
The lower court granted the agency and the chief summary judgment
stating that the plaintiff had failed to articulate any deficiency in the
training of the officers. The lower court said that the officer was not
entitled to qualified immunity since genuine issues existed as to the
reasonableness of the use of deadly force, and therefore a trial was held.
The jury found that the officer acted reasonably and had not violated the
Jenkins’ constitutional rights. This court affirmed both decisions.
Ross v. Town of Austin, 343 F.3d 915 (7th Cir. 2003)
Facts: Suspect Miller tried to shoot his wife at the school where she
she worked; he left the school and was involved in a car accident. An
officer saw him get out of his vehicle with a shotgun, and as he was
approaching a store, the officer ordered him to stop and to put down the
gun. The officer did not discharge his weapon because of the number and
close proximity of bystanders. Suspect Miller then went into a liquor store
and took Kenneth Ross hostage. Hostage negotiations failed and Miller
killed Ross and then killed himself. Ross’s wife sued the Town of Austin
alleging the failure to train officers in tactical combat and hostage
negotiation resulted in the death of Kenneth Ross.
Legal Analysis:
The lower court granted summary judgment in favor of the Town of
Austin; this court affirmed that decision and dismissed Mrs. Ross’s
lawsuit for failure to provide tactical combat or hostage negotiation
training. The court refused to create a rule requiring advanced training
and noted that the officer had received all state mandated training.
Other Federal decisions (Note: these are NOT in our district/circuit):
Shoot/Don’t Shoot Training Issues: “When to shoot” necessary training
Popow v. City of Margate, 476 F.Supp. 1237 (N.J. 1979): Officer was
chasing and fired his firearm in the direction of a suspected kidnapper, but
he accidentally shot Mr. Popow. The officer had training on how to shoot,
but not in conditions that he would encounter in the real world (firearms
training from academy ten years prior, with continued practice at the range
twice a year). The court noted that an officer would likely encounter low
light conditions, moving targets, or firing in residential areas and the
training should reflect those conditions.
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Zuchel v. Denver, 997 F.2d 730 (10th Cir. 1993): Officer went to a
disturbance at a fast food restaurant and saw Zuchel arguing with some
teenagers. Someone yelled that Zuchel had a knife; as Zuchel turned
towards the officer, he shot him. A pair of fingernail clippers were found
next to him. His partner said she was surprised her partner shot Zuchel
because she was about to grab Zuchel when the other officer shot him.
The lawsuit against the officer was settled; the case against the City of
Denver went to trial and jury found against Denver in the amount of
$330,000. The City of Denver appealed and the 10th Circuit upheld the
verdict and noted that the plaintiff’s police practices expert testified that
training on “shoot-don’t shoot” which consisted of a lecture and a movie
was grossly inadequate.
Training “Off-Duty” Conduct/Documenting Training
Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000) This was a review of an
off-duty shooting. The off-duty officer chased a man in a road rage
situation and shot him 3 times. The officer reported the man had pointed a
gun at him. Denver PD had a policy requiring officers to always be armed
and on duty, yet did not provide any training. A captain testified the
rationale for not training was that there was no difference between on-duty
and off-duty. A police practices expert said the two situations are very
different; on-duty has command presence because of uniform (and all the
gadgets apart of uniform), but off-duty just hands and firearm.
Young v. City of Providence, 2004 U.S. Dist. Lexis 1847 (R.I. 2004)
Two uniformed officers responded to a call that two women were fighting
outside a late-night restaurant. When the officers arrived, there was a
Hispanic male in the parking lot with a gun. One officer took cover
behind a telephone pole and remained there during the entire incident; the
other officer took cover behind the passenger wheel-well of the police
cruiser, but then moved to the rear bumper of the suspect’s vehicle in an
attempt to see him (after they ordered the man to drop his gun and the man
was complying). As they were ordering the man to drop the gun, another
man, African-American, came out brandishing a firearm. The AfricanAmerican man was moving towards the Hispanic and was not complying
with the officer’s orders to drop the firearm. The officers shot the
African-American---it was determined he was an off-duty PO, Cornel
Young, Jr. who was going out to assist the other officers.
Cornel Young, Jr’s mother sued; the agency was successful in this case
since the training on the “off-duty” issues had been DOCUMENTED. It
included scenario based decision making training that included shootdon’t shoot decision making. It also included training on an interactive
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firearms simulator where officers would have to give verbal commands,
make decisions regarding cover, and in some cases make the ultimate
decision of whether to shoot or don’t shoot.
Control Tactics Training
Paul v. City of Altus, No. 96-6376 (10th Cir. 1998): Officers said their
conduct of putting knee on subject’s knee was consistent with training;
The department introduced training materials that specifically instructed
them to not place a knee on a suspect’s neck “for obvious medical
reasons.” The city took the position that if the officer did put his knee on
plaintiff’s neck he acted in violation of training.
Court did not grant summary judgment because of the factual discrepancy.
The entire case rested on how the officer was trained.
Mental/Suicidal Subjects
Gaddis v. Redford Township and City of Dearborn Heights, 364 F.3d 763
(6th Cir. 2004)
Officer stopped a vehicle because the driver, Gaddis, was slumped over
the wheel as he was driving. The officer had him step out of the vehicle,
he had Gaddis take his hands out of his pockets and at that point saw a
knife. The officer created distance and ordered Gaddis to drop the knife—
Gaddis made statements that led the officer to think something was not
quite right with the suspect. The officer moved towards Gaddis and
pepper sprayed him. Another officer arrived and then tackled Gaddis—
Gaddis became violent and it appeared to two other officers that Gaddis
was stabbing the officer. The officers opened fire, shooting 16 rounds
(Gaddis was hit in the torso, right arm, buttocks, and left thigh).
An expert testified that the officers deviated from proper police techniques
for dealing with emotionally disturbed persons.
The Court upheld the lower court’s dismissal of the lawsuit against the
officers and two municipalities, but noted that the expert opinion about
how to handle these subjects was an opinion that should be given some
weight.
Carr v. City of Oklahoma City, 337 F.3d 1221 (10th Cir. 2003): Carr had
assaulted his landlord and when police arrived and were able to get him to
answer his door, he was acting very excited and aggressive. They
attempted to handcuff him, but he assaulted the officers and fled on foot.
He came to a fence he couldn’t climb, so he picked up a concrete block
and had it raised over his head. The officers shot him—contradiction in
evidence (officers said they shot him when the block was raised over his
head; an impartial witness said they commenced firing after the concrete
block had been thrown). The plaintiff alleged several “failure to train”
issues. The court noted that for a failure to train claim, the plaintiff must
show:
 Officers exceeded constitutional limits on use of force
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


Use of force arose under circumstances that constitute an usual and
recurring situation (foreseeability)
Inadequate training must be so inadequate as to demonstrate a
deliberate indifference
Direct causal link between the constitutional deprivation and the
inadequate training
Court also said it will decide agency liability by reviewing the program
itself—lesson plans, training outlines and deposition testimony of trainers
regarding the content of the training.
NOTE: where a sound training program is negligently or deliberately
indifferently administered by a particular training officer, the agency will
not be liable, but the training officer may have liability as an individual.
Where poor training leads to an injury to a 3rd party, the training officer
can and likely will be a defendant in the lawsuit
Cruz v. Laramie, 239 F.3d 1183 (10th Cir. 2001): Cruz was running
around an apartment complex naked—jumping up and down, yelling and
kicking his legs in the air per the first officer to arrive—they wrestled him
to the ground and hog-tied/hobble tied him—he calmed, but then stopped
breathing. He died upon arrival at the hospital. COURT ruled that this
type of restraint could not be used when an individual’s diminished
capacity is apparent. The court did grant qualified immunity because up
to this point the law on use of hog tying persons with diminished
capacities had not been clearly established.
Allen v. City of Muskogee, 119 F.3d 837 (10th Cir. 1997): Police
responded to a suicidal man in car with a gun; within 90 seconds of the
police arriving, the police rushed the vehicle and attempted to take his
gun—when the startled man moved, the officers believed he was turning
the gun on them and they shot and killed him. A department training
officer was deposed and he stated the tactics used were consistent with
their training; a police practices expert said that this tactic was inconsistent
with every bit of police training nationally (national standard is to isolate
and negotiate).
Herrera v. Las Vegas Metropolitan Police, 298 F.Supp 2d 1043 (Dist.
Nevada 2004)
Herrera was mentally ill and his mother let police have a key to her house
to get Herrera and to take him to the hospital for involuntary commitment;
he was holding a knife and refused to put it down. They pepper sprayed
him, shot bean bags rounds—he said that the officers would have to kill
him as he held a knife up and moved towards the police. They shot and
killed him.
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COURT held that the failure to claim was sufficient to survive summary
judgment (ie, the lawsuit will continue forward) because according to an
expert, the officers should have known their actions would escalate the
situation and the police department’s training dealing with the mentally ill
fell well below the reasonable standard of contemporary care.
END OF DOCUMENT
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