Tactics Matter: How An Otherwise Lawful Officer-Involved Shooting Can Give Rise to Liability Based on an Officer’s Pre-Shooting Conduct

One of the major trends in law enforcement policies and tactics is an increased emphasis on de-escalation tactics prior to an officer’s use of force. Some agencies have begun to require officers to make an attempt to de-escalate a situation, when safe, before engaging in force, such as an officer-involved shooting.  While some of these concepts may seem common-sense in theory, the specifics are difficult to evaluate.  For example, when is it safe for an officer to attempt to de-escalate a situation, and what must the officer do to de-escalate?

While police unions and agencies battle over the language that will be included in the de-escalation policies, courts have already imposed requirements on how officers should act prior to engaging in a use of force such as an officer-involved shooting. Under both federal law and state law, it is theoretically possible for an officer (and their employing agency) to be found civilly liable for an otherwise lawful officer-involved shooting if the officer’s pre-shooting conduct ran afoul of certain legal standards and led to the officer-involved shooting.  Those exact standards – and the distinction between federal law and state law – are discussed below.

Following a major use of force, such as an officer-involved shooting, there are typically three layers of review involved. First, a local law enforcement agency and the local District Attorney will separately engage in a criminal review to determine whether the officer committed a crime and whether charges will be filed.  As national media outlets have discussed over the past few years, prosecutions of police officers for on-duty officer-involved shootings are extraordinarily rare.

Under California law, an officer is entitled to use deadly force in his own defense and in the defense of others when necessary to prevent great bodily injury or death. If an officer’s tactics prior to the officer-involved shooting were negligent, there is no precedent establishing that the officer can be criminally prosecuted for what was an otherwise lawful shooting.

Second, after the criminal review has been completed, the officer’s employing agency will engage in an internal affairs investigation, alternatively referred to as an administrative investigation. The analysis here is to determine whether an officer violated his employer’s policies.  The internal affairs investigation can look at the officer’s tactics before the shooting, the decision to shoot itself, or peripheral matters such as whether an officer properly activated his body-worn camera.  An agency’s investigation can result in discipline for the officer, up to and including termination.

The emergence of de-escalation requirements means that an agency can discipline an officer for engaging in an officer-involved shooting after failing to engage in appropriate tactics beforehand. This is a hotly-contested battle between agencies and police unions.  But as noted above, the third avenue for assessing officer-involved shootings – civil lawsuits – already evaluates an officer’s pre-shooting tactics.

Following an officer-involved shooting, an officer and his employing agency can be sued for both federal law and state law claims. The avenue for suit under federal law is 42 U.S.C. § 1983.  Section 1983 suits against an officer and his employing agency following an officer-involved shooting typically assert violations of the Fourth Amendment, as either a surviving plaintiff (in the event of a non-fatal shooting) or the decedent’s successor-in-interest (in the event of a fatal shooting) contend that the officer used unreasonable force.  The Supreme Court has established that the standard for evaluating an officer’s use of force under the Fourth Amendment is objective reasonableness.

Plaintiffs frequently allege multiple claims under state law following an officer-involved shooting, including battery, negligence, wrongful death, and violations of the Unruh Act (Civil Code § 52.1). Consistent with the standard for Section 1983 Fourth Amendment claims, claims for negligence and wrongful death are also evaluated on an objective reasonableness standard.

While both Fourth Amendment claims and state law negligence and wrongful death claims use the same objective reasonableness standards for evaluating an officer-involved shooting, an officer’s conduct prior to the shooting is evaluated very differently in Section 1983 claims than in negligence and wrongful death claims.

In evaluating Fourth Amendment claims, the Ninth Circuit has held that an otherwise reasonable officer-involved shooting violates the Fourth Amendment if the officer’s pre-shooting conduct was an independent Fourth Amendment violation and the earlier Constitutional violation provoked the shooting. Under the Ninth Circuit standard, if an officer’s conduct prior to a shooting was merely negligent, such as in failing to de-escalate a hostile situation, the pre-shooting conduct cannot form the basis of a Constitutional violation. Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002).  If, however, the officer violated a suspect’s Fourth Amendment rights by illegally entering the suspect’s home, then the earlier Constitutional violation can form the basis for determining that the shooting itself was a Constitutional violation if the shooting arose from the illegal entry into the home. Espinosa v. City and County of San Francisco, 598 F.3d 528 (9th Cir. 2010).

The standard under California law differs. In Hayes v. County of San Diego, 57 Cal.4th 622 (2013), the California Supreme Court held that an officer’s tactics can be considered as part of an overall determination as to whether an officer-involved shooting was reasonable.  Expanding the scope of the analysis beyond the shooting itself means that an otherwise reasonable shooting could be found unreasonable under California law when the events leading up to the shooting are evaluated.

For example, consider a scenario in which two officers engaged in a foot pursuit of a suspect. Let us assume that the officers decided to separate to cover more ground.  Let us also assume for the sake of argument that the officers’ decision to split up was negligent.  After separating, one of the officers pursued the suspect into an alleyway where he attempted to physically apprehend the suspect while his partner was en route on foot.  During the attempted physical apprehension, the suspect attempted to take the apprehending officer’s gun, resulting in a violent physical struggle, and ending when the apprehending officer fatally shot the suspect.  If a judge and jury in a civil lawsuit were simply to analyze the shooting itself, the apprehending officer’s conduct to fire his weapon was almost certainly reasonable.  Shooting a suspect who is attempting to take an officer’s gun in a physical struggle is a textbook case of a reasonable officer-involved shooting.  But what happens when the analysis by the judge and jury expands into the officer’s pre-shooting conduct?

Again, if we assume that it was negligent for the officer to separate from his partner during the foot pursuit, then it is certainly possible that a jury could evaluate the totality of the circumstances – the decision to engage in the foot pursuit, the decision by the officers to separate, the decision by one officer to attempt to apprehend the suspect before his partner had arrived at the location, and the later need to fire his gun during the physical struggle – and conclude that the shooting officer’s overall conduct was negligent and that it was the cause of the fatal shooting. This broad analysis makes the defense of state law negligence and wrongful death claims difficult because a jury can look at numerous factors and rule against an officer.

The lesson here is not clear. Although an officer will be judged by his pre-shooting conduct in evaluating any potential civil claims, any officer who finds himself in this midst of such a life-or-death situation is still going to shoot even if the officer has the self-awareness to realize that his actions up to that moment might have been negligent.  The broader lesson is that tactics matter.  The best takeaway for an officer and his employing agency is to do everything possible to avoid being put into situations in which deadly force might become necessary.  Because regardless of whether the employing agency will look at the officer’s pre-shooting tactics in a critical light, the finder of fact in a civil lawsuit will.

If you have any questions about how your agency’s policies, training, or investigative procedures can be modified to address these issues, please contact me for a consultation.

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