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USE OF FORCE: PRE-SHOOTING

CONDUCT

How a Court’s Analysis Impacts

Suicide by Cop Cases

June 2010

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©2010 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (llrmi.com).

Tw o of the more significant issues w hen dealing w ith law enforcement’s use of deadly force are first, how will the court analyze the totality of circumstances , and second, how does the mental state of the person law enforcement is dealing with impact the use of force decision ?

In Graham v. Connor i

the United States Supreme Court held: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than w ith the 20/20 vision of hindsight.” In Tennessee v. Garner , the Court held that all Fourth Amendment seizures are judged by a

“totality of circumstances.” ii

Putting these tw o standards together it becomes clear that a court must review an officer’s use of force by the Totality of circumstances from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight.

The issue w hich arises among the courts is exactly w hat factors are included in the “totality of circumstances.”

Some courts looked to the moment in time that the seizure w as made, iii

w hile others allow the events leading up to the need to use deadly force as part of the analysis.

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Simply stated, some of the United States Courts of

Appeals do not ask how the officer arrived at the moment in time, but simply ask, w as the officer or someone else in danger of serious bodily harm or death at the time the force w as used? Other courts look at the officer’s pre-force conduct to determine if the officer’s tactics or actions in some w ay created or, in some w ay caused, the need to use deadly force. Some of the courts have applied different variations of this analysis.

v

Due to this split among the Circuits as to how force w ill be analyzed, an allegation that an officer’s tactical approach to a given use of force circumstance may impact the ultimate use of force in some parts of the country, but not others. In some parts of the country courts consider only the last frame, in a series of snapshots of the particular event w hile others consider every snapshot leading up to the last frame as part of the equation. In the latter type of analysis, the question is often asked, did the officer place him or herself in the position of peril through poor tactics, thus creating the need to use deadly force?

This pre-shooting conduct/tactic issue often arises in cases w here officers are dealing w ith emotionally disturbed, suicidal, or mentally impaired persons. The manner in w hich this issue arises usually surrounds a

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common set of facts. An emotionally disturbed person (EDP) is threatening suicide w ith a w eapon. Officers respond to the scene and end up using deadly force w hen the subject uses the w eapon to threaten the officers. The pre-shooting conduct comes into question w hen plaintiff’s expert calls into question the approach and tactics of the officers w hich led up to the need to use deadly force. One can expect that the plaintiff’s expert w ill assert that officer’s should have slow ed the situation dow n; should have backed off; should have sought the assistance of mental health professionals; should have applied crisis intervention/Memphis model tactics; should have used de-escalation techniques; and should have used other less-lethal force tactics to bring the situation under control. If the particular jurisdiction’s United States Court of Appeals, is one w hich opens the totality of circumstances to include pre-shooting conduct, these factors may relevant in determining w hether the officer’s ultimate use of deadly force w as reasonable, even if, at the moment in time the force w as used, the officer or someone else w as clearly in danger of death or serious bodily har m. If the case arises in a jurisdiction w here the United States Court of Appeals looks only to the moment in time the force w as used, these pre-shooting factors may be irrelevant.

A recent case decided by the United States District Court for the District of South Dakota, Southern Division, show s the interplay betw een the issue of pre-shooting conduct and dealing w ith the suicidal EDP.

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The Ogle case involved an emotionally disturbed man, Anthony LaRocco, w ho w as threatening suicide.

LaRocco w as know n to law enforcement, including some of the officers involved in the event leading to the law suit, as the result of prior occasions involving emotional disturbance episodes, at least one of w hich included a threat to commit suicide.

The court outlined some of the facts as follow s:

“On October 20, 2007, at 7:26 p.m., a telephone operator called 911 stating that she had received a call from a gentleman stating that he w as bi-polar, manic depressive, that he had tw o small children and told the operator not to send the police. The telephone operator also informed 911 that the caller stated he had a gun and had been drinking. At 7:30 p.m., a counselor at the Missouri Shores crisis line called 911 to relay a call that she received from a gentleman w ho said that he w as bi-polar, manic depressive, and had been drinking. The counselor said the caller stated that he had tw o small children and that if the counselor sent law enforcement to his house, "people are going to die." The counselor informed the 911 operator that she thought she had heard shots fired during the call. At 7:34 p.m. on October

20, 2007, LaRocco called 911 and stated that he had a 9 mm gun in his pocket and that he w ould shoot himself in the head. LaRocco stated during this call that if he saw headlights coming he w ould pull the gun out and pull the trigger. He stated that he w as very dangerous and that he w ould blow up fuel pods on the James Ogle farm if he saw headlights. LaRocco called 911 again at 7:37 p.m. that evening stating that he had tw o small children w ho w ere in

Jim Ogle's trailer and that they w ould be alone in the trailer. He told the officers not the hurt the children and told the 911 operator that they should call their mother at Stables bar to come w atch them. LaRocco stated that he w as the one w ho had been on top of the bar recently and that officers had previously been to his house. He said that he w ould leave the trailer and w ould put a gun to the officers and that they w ould be able to shoot him w ith no problem.

LaRocco stated that he w as tired of the suffering that Jim Ogle and others in his family had put him through and that Jim Ogle w as the one w ho w as going to pay for all of this. LaRocco told the operator that he could not "handle it anymore" and just w anted someone to help him.”

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It w as noted that prior to engaging LaRocco, officers had received information from Mr. LaRocco’s fiancée that the gun possessed by LaRocco w as actually a BB gun. It w as also know n that the children w ere no longer w ith Mr. LaRocco by the time he w as engaged by the officers.

During the investigation of this event, as the officer’s began to stage at a local airport, a pickup truck w as observed fleeing the area of the airport. Officer’s began to pursue this truck w hich w as being operated by

LaRocco. LaRocco fled from the truck follow ing the vehicle pursuit and fled into a field. He w as illuminated by maneuvering law enforcement vehicles as he moved through the field w ith the gun in hand. As a result of

LaRocco pointing the gun at officers, deadly force w as used and a law suit w as brought. There is no question, that at the time the force w as used, a reasonable officer w ould believe that he or she w as in danger of serious bodily har m or death. The question raised by plaintiff’s expert w as w hether the officer’s actions leading up to the moment deadly force w as used w ere proper. The court, in its analysis quoted the testimony of plaintiff’s expert:

“Plaintiff cites the deposition and report of her retained expert, Kevin Johnson , w ho opines that Sheldon and Lantz did not have a reasonable belief that they and others w ere in danger of physical harm. In his deposition Mr. Johnson based his conclusion on the follow ing circumstances:

QUESTION: In view of those facts, it's your opinion that Trooper Lantz did not have a reasonable belief that he and the others near him w ere in danger of physical harm?

ANSWER: I w ould say no.

QUESTION: And w hy not?

ANSWER: I w ould say the totality of circumstance to me is at that very moment they all had cover. The lights, meaning headlights, spotlights, and it w as 9 -- I'm not sure exactly w hen the shot w as fired. Somew here around 9:20, somew here in that area. Anthony obviously w as suicidal, very stressed. Found out that he had alcohol in his system.

QUESTION: Later they found out.

ANSWER: Right. But he had alcohol in his system. He w as very nervous, stressed w ith the officers yelling at him and so forth. A mental person like that, it's going to stress them out even more. They w ere roughly 25, 26, 27 yards aw ay, and w ith the lights shining in his eyes at that time of night, I'm guessing he didn't see a w hole lot, other than a lot of conversation going on at him. Besides that immediate right there, w hat I just stated, they had the SWAT team tw o minutes aw ay w hen the shot w as fired.

QUESTION: I w ant to keep my question focused right at the time the shot w as fired.

ANSWER: That's w hat I w ill say. With all those things I just stated, one step to the left for either

Officer Lantz or w homever, the cover w as there, they had everything they needed. They also could have backed off that situation. He did not fire a shot up to that point. They w ere out there

13 or 14 minutes. This guy did not fire a shot at any of that time. No shots w ere fired up to that time. They very easily could have backed of from the situation, because up to that point it w as

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nothing but a misdemeanor out there. No felony had been committed until they got to that field.

To me, the circumstances did not allow that kind of shot to be made.

QUESTION: Based on your reading of the materials you review ed, are you telling me that it w ould have been impossible for Mr. LaRocco to fire a handgun and hit one of these officers under those circumstances had the handgun been real?

ANSWER: I suppose he could have fired the w eapon at anytime. But if they w ould have gave him the distance that I feel they should have gave, along w ith all those other circumstances that

I gave, I don't feel there w as any cause for deadly force. I feel excessive force, deadly force w as used.

QUESTION: I understand you are looking at it under w hat you believe is the totality of the circumstances. I w ant to limit my question to the circumstances, the conditions that existed at the time the shot w as fired.

ANSWER: I'm still going to say no.

QUESTION: Why not?

ANSWER: I just explained them. That w ould be my answ er.

QUESTION: Even though you admit that the officers had a right to believe that gun w as a genuine gun.

ANSWER: They had the right to believe it w as a genuine gun. That's correct.

QUESTION: They w ere at least exposed or partially exposed at the time Mr. LaRocco pointed that gun at them using tw o hands?

ANSWER: Whether they w ere exposed or not, I'm going by the report. They had cover of their vehicles. They had cover of darkness. I'm going by their reports.

QUESTION: Whatever happened, w hatever the lighting conditions w ere, it w as light enough so that w hen Mr. LaRocco pointed that gun just prior to the time he w as shot, he pointed it right at people.

Didn't he?

ANSWER:I don't think he knew w ho he w as pointing it at: I think he w as just pointing at that direction, because that's w here the lights w ere and that's w here the voices w ere at. I don't honestly believe he could see anybody out there.

QUESTION: Why do you say that?

ANSWER: Because I know w hat happens at night w hen you shine lights in an individual's eyes.

That's w hy as officers, w hen you pull somebody over at night, you put your lights and your spotlights in the mirrors and rear-view mirrors so the subject or person cannot see how you approach a vehicle.

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QUESTION: So is it your opinion that a reasonable officer in the position of Sheldon and Lantz should have assumed that even though the gun w as pointing directly at them, that really the guy pointing the gun didn't know they w ere there?

ANSWER: I'm sure he knew they w ere there. He could hear their voices. I can't say he knew he w as pointing it at them. I w ould not say that.

QUESTION: That's poorly phrased. Should a reasonable officer in the position of Sheldon and Lantz have believed that Mr. LaRocco did not know he w as pointing the gun directly at them at the time of the shot?

ANSWER: That Officer Lantz and Sheldon, that they could see he w as pointing the gun at them?

QUESTION: That's w hat they testified to. Didn't they?

ANSWER: That's w hat they said in their report. I can't dispute that. That's w hat they said.

QUESTION: My question is w ould reasonable officers in their position seeing Mr. LaRocco pointing a gun directly at them not have a valid reason to believe Mr. LaRocco w as, in fact, pointing the gun at them w ith the intent to shoot at them?

ANSWER: I w ould say no. I don't think they knew w hat he w as going to do. He w as out there for

13 minutes pointing the gun in different directions. Many of the reports said that he w as pointing the w eapons tow ard them. What he w anted to do at that moment, I have no idea.

QUESTION: I don't know w hat Mr. LaRocco w anted to do. I'm just asking w hat a reasonable officer seeing the gun pointed directly at them had reason to believe that guy pointing the gun may shoot me.

ANSWER: They probably did think that.

Mr. Johnson also stated that the officers should have used one of the several less deadly alternatives he believed w ere available to the officers at the time rather than using deadly force.”

Thus, the plaintiff w as attacking the pre-shooting conduct of the officers as it w as acknow ledged by their expert that a reasonable officer w ith gun pointed at him or her w ould believe that they w ere in danger of serious bodily harm or death.

The federal district court, applying the analysis adopted by the United States Court of Appeals for the Eighth

Circuit, dis missed the law suit finding on behalf of the officers. The trial court, citing the caselaw for their Circuit asserted: “Contrary to Starks and the other cases cited by Plaintiff, the Eighth Circuit has stated that ‘[t]he

Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general.

Consequently, w e scrutinize only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment .” Thus, w hether the officers could have used better or other tactics, is not the issue, the issue is w hether the officers w ere in danger of serious bodily har m or death at the moment of the shooting itself.

The court outlined the rationale behind this decision as follow s:

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In examining the facts know n to Lantz at the moment of the shooting, as the Court is obligated to do, the Court concludes that Lantz's belief that LaRocco posed a serious threat to his physical safety and to the physical safety of officers Duncan and Sheldon w ho w ere also in the line of fire from LaRocco's gun w as not objectively unreasonable. Right before LaRocco w as shot, officers reported that LaRocco appeared that he w as going to comply w ith officers' orders to drop his w eapon because he had low ered his gun dow n by his right side. Instead of dropping his gun, how ever, LaRocco assumed for the first time Lantz had been in the field, a tw o-handed grip on his gun and fell to his knees or into a deep crouch, pointing the gun directly at officers Lantz, Sheldon, and Duncan. Although officers Sheldon and Duncan w ere at least partially behind the cover of their vehicles, Lantz w as fully exposed as he w as providing

Sheldon lethal cover from a short distance behind and to Sheldon's right as Sheldon looked for an opportunity to release his canine. At the time LaRocco assumed this position, he w as approximately 78 feet aw ay from LaRocco. Plaintiff's expert, Kevin Johnson, stated that officers w ere correct in assuming LaRocco's gun w as a pistol given their inability to confirm that it w as a BB gun and that it w as certainly possible for LaRocco to have inflicted serious bodily har m upon one of the officers from that distance had the handgun been a real pistol.

The fact that Lantz had been informed that LaRocco w as intending to commit suicide by cop, that LaRocco had exhibited suicidal behavior in the field, and had w aved and pointed his gun in the direction of officers numerous times throughout the encounter w ithout firing a shot does not render unreasonable Lantz's belief that LaRocco posed a serious threat to his physical safety at the time he fired his w eapon. The Court is simply unw illing to put officers in a situation w hereby they cannot defend themselves from a threat of deadly force if it appears that a suspect is mentally ill and suicidal.

In dealing w ith the plaintiff’s argument that the officers should have attempted some lesser use of force prior to deadly force, the court stated:

“The fact that there exist questions of fact as to w hether other less obtrusive alternatives, such as utilizing Sheldon's canine to subdue LaRocco, w ere available to Lantz does not alter this

Court's conclusion that Lantz's decision at that moment to use deadly force w as not objectively unreasonable. Although the Eighth Circuit in Cole acknow ledged that courses of action other than the use of deadly force may have conceivably been available to the officer in that case, the court stated that "[t]he Constitution, how ever, requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision." Cole, 993 F.2d at 1334 . " It may appear, in the calm aftermath, that an officer could have taken a different course, but w e do not hold the police to such a demanding standard." Gardner, 82 F.3d at 251 . Even assuming that Sheldon had an opportunity to release his canine, Lantz w as not required to utilized this less lethal force because his belief that LaRocco posed a serious and immediate threat to his physical safety w as not unreasonable.”

Thus, the analysis in jurisdictions covered by the United States Court of Appeals for the 8 th

Circuit (North

Dakota, South Dakota, Nebraska, Minnesota, Iow a, Missouri, Arkansas), pre-shooting conduct and tactics may not be relevant to the ultimate issue of w hether use of deadly force w as reasonable and there is no lesser-

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alternative requirement w ith respect to use of force. The question is w hether the particular force used w as reasonable under the circumstances.

It is noted that other United States Courts of Appeals apply a different analysis for w hat constitutes the totality of circumstances and may take pre-shooting conduct/tactics by an officer into account w hen deciding if a particular use of force w as reasonable.

“Use of Force” Search Results in the LLRMI Article Arc h ives

CITATIONS:

v i ii

Graham v. Connor, 490 U.S. 386 (1989). iii iv

See e.g.

St.

Hilaire v.

City of Laconia, 71 F.3d

20 (1995).

Tennessee v. Garner, 471 U.S. 1 (1985).

Cole v. Bone,

See e.g.

993 F.2d 1328, 1333 (8

Billington v.

Smith, 292 F.3d

th

Cir. 1993) (“ we scrutinize only the seizure itself, not the events leading to the seizure”)

1177 (9 th

Cir.

2002); See DeBoer v.

City of Olympia, 183 Fed.

Appx.

671 (9 th

Cir.

2006).

vi

Ogle v. Lantz, 2010 U.S. Dist. LEXIS 47944 (S.D. Fed. Dist. Southern Div. 2010).

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Printable Version

USE OF FORCE: PRE-SHOOTING

CONDUCT

How a Court’s Analysis Impacts

Suicide by Cop Cases

©2010 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (llrmi.com).

CITATIONS:

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USE OF FORCE: PRE-SHOOTING

CONDUCT

How a Court’s Analysis Impacts

Suicide by Cop Cases

©2010 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (llrmi.com).

CITATIONS:

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