It seems police officers are put between a rock and a hard place whenever they are called to conduct a well-being check, assist in the involuntary commitment of a mentally ill person or aid a distraught woman who wants her drunken spouse out of the house until he sobers up. Most of the time when officers respond to such calls, there s no need to use force or arrest the individuals. But sometimes, a drastic series of events requires officers to make life-and-death decisions. And when a life is taken, the good ol American way is to sue the police officers who were called to assist.
It s mind boggling that we have gotten to this point, and Hastings v. Barnes1 illustrates the trick bag officers can find themselves in when responding to a well-being check.
On Aug. 23, 2002, 32-year-old Todd Hastings contacted a social services agency located in Tulsa, Okla., to report he was having suicidal thoughts and request counseling. He told a social services worker on the phone he was going to commit suicide by running a hose from his truck into his house to asphyxiate himself. The social service worker contacted another agency, which in turn dialed 911. The 911 call went to the Owasso Police Department (OPD); because Todd s home was outside Owasso s jurisdiction, it contacted the Tulsa County Sheriff s Office. Tulsa County Sheriff s Deputy Yerton was dispatched to the home. No other backup was in the area, so the Sheriff s officer requested assistance from the OPD. OPD Officers Barnes and Davis and Reserve Officer David Bigley went to assist. The responding officers were told Hastings was thinking about committing suicide by asphyxiation and wasn t known to be armed.
When the officers arrived at Hastings house, they saw a truck in the driveway, but no hose was connected to it. Yerton knocked on the door several times. After the second set of knocks, Hastings opened the door halfway wearing only pants. Yerton asked him if he was Hastings and if he told the social services agency he was attempting to commit suicide. Hastings responded, Yes to both questions.
The officers observed that Hastings appeared nervous and agitated. Hastings stated he wanted to get his shoes. Thinking Hastings was going to shut the door and go back inside, Yerton placed his foot in the doorway. As anticipated, Hastings tried to slam the door shut and ran into a nearby bedroom.
The officers entered the home. Yerton opened the bedroom door and observed Hastings grab a Samurai sword with a 20'' blade and a 21'' handle. At that point, Yerton yelled Knife! to the other officers. Yerton drew his weapon and positioned himself on the left side of the door behind the doorframe. Davis and Bigley also drew their weapons and stood in the bedroom doorway with Barnes. Hastings stood only 8-12 feet away from the officers, holding the sword like a baseball bat. The officers ordered Hastings to put the sword down several times. At one point, Hastings pointed the sword toward himself as if he was going to stab himself, but then returned to his original position. Hastings also lowered the sword, grabbed a telephone and spoke. Barnes heard him say, Help me or They are coming to get me. None of the other officers heard what Hastings said.
As Hastings was talking on the phone, Barnes pepper sprayed into his face for one to two seconds in an attempt to get him to drop the sword so the officers could detain him. Unphased by the spray, Hastings turned the sword toward the officers and began to move in their direction. The three officers who were in the doorway attempted to retreat but couldn t because it was too crowded. Barnes shot Hastings once, Davis shot him three times and Hastings died on scene. The entire incident lasted less than four minutes.
Qualified Immunity Inquiry
Hastings brother filed a civil-rights lawsuit against Barnes and Davis, alleging they violated Hastings Fourth Amendment right to be free from unreasonable searches and seizures. The officers later filed a motion for summary judgment, asserting they were entitled to qualified immunity because the decision to shoot Hastings was in self-defense and thus objectively reasonable. However, the district court denied their motion, stating the officers weren t entitled to qualified immunity. The officers filed an appeal to the Tenth Circuit Court of Appeals.2
In determining whether the officers are entitled to qualified immunity, the appellate court asserted that the plaintiff (Hastings brother) had the burden of demonstrating the officers violated a constitutional right and the constitutional right was clearly established at the time of the purported violation.3 If the court finds the officers didn t violate a constitutional right, no further inquiry is required, and the officers are entitled to qualified immunity.
The officers contended they acted reasonably under the circumstances. They also argued undisputed evidence proved Hastings was moving toward them with a large sword and refused to stop. As such, they shot in self-defense.
The plaintiff argued that the officers actions were unreasonable, therefor constituting excessive force. He argued the officers weren t responding to a crime or attempting to arrest Hastings. Instead, they were responding to a call for help from a suicidal subject. As such, the officers knew they were dealing with a potentially mentally ill or emotionally disturbed individual. Therefore, according to Plaintiff, the officers training required them to de-escalate the situation. Instead, the officers escalated the events by entering the home, confronting Hastings in the bedroom and pepper spraying him, which forced them to use deadly force.
The appellate court reiterated the law governing the use of force under the Fourth Amendment: [b]ecause the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. 4 The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. 5 Not every push or shove, even if it may later seem unnecessary in the peace of a judge s chambers violates the Fourth Amendment. 6 Further, the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving about the amount of force necessary in a particular situation. 7
The appellate court also stated that deadly force is reasonable under the Fourth Amendment if a reasonable officer in Barnes and Davis positions had probable cause to believe there was a threat of serious bodily injury to themselves or others. Thus, an officer s use of deadly force in self-defense wouldn t be unreasonable.
In this case, the plaintiff didn t dispute the fact that at the moment of the shooting, Hastings was moving toward the officers with a sword. He also agreed the officers were acting in self-defense. However, the plaintiff argued the officers actions preceding the shooting created the need to used deadly force, rendering the shooting unreasonable.
According to the court of appeals, the use of deadly force depends on whether the officers reasonably believed they were in danger of great bodily harm at the moment they used force and also on whether the officers own conduct during the incident unreasonably created the need to use such force. The court stressed, however, that only reckless or deliberate conduct be considered: In other words, mere negligent conduct or conduct attenuated by time or intervening events is not to be considered. 8
With that in mind, the appellate court stated that whether Barnes and Davis actions unreasonably led to the need to use deadly force is a question for a jury. The court, viewing the record in a light most favorable to Plaintiff (as the court must do on motions for summary judgment), asserted Hastings hadn t committed a crime but was a potentially mentally ill or emotionally disturbed person attempting to commit suicide. He called for help. However, instead of helping Hastings, the court stated the officers squeezed themselves into a bedroom doorway, leaving no room to retreat; used loud commands; and sprayed him with OC, which caused him more distress. The court also stated that at the time the officers used OC, Hastings wasn t physically or verbally aggressive toward the officers, and one of the officers could hear him saying, Help me or They are coming to get me. 9 Under these circumstances, the court concluded a jury could find the officers actions unreasonably escalated the situation, calling for the need to use deadly force.
The Bottom Line
Frequently, police officers are called to assist. Those who want assistance are typically complaining about an individual who has not committed a crime but is in some sort of physical and/or mental distress. Often something goes wrong through no fault of the officers, particularly when officers are called to deal with distressed individuals. And sometimes, the mere fact that police are called to the scene escalates a situation.
When do officer actions escalate a situation to the point it becomes unreasonable in violation of the Fourth Amendment? Answering that requires second-guessing the police officers response, which is what the U.S. Supreme Court prohibits us from doing when determining reasonableness.
Perhaps it s some consolation that not all courts take into account the activities preceding the actual use of force. After all, at what point will the courts draw the line in determining how far back we go? For example, raiding the homes of drug dealers known to carry weapons requires advanced planning. If something goes wrong, do we hold all of those involved in the planning stages legally accountable? Considering the pre-force activity of officers puts the courts on a slippery slope.
In the meantime, officers should undergo scenario training for such situations. Frankly, training scenarios that call for officers to shoot a suspect who just shot a 7-Eleven clerk are easy. It s the call-to-assist that proves problematic because there s so much gray area and room for a variety of responses.
In closing, even with the luxury of time to think about the circumstances Davis and Barnes faced, I can t say I would ve acted any differently.
Do not construe this column as legal advice. Each officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1. No. 04-5144, 2007 WL 3046321 (10th Cir. Oct. 18, 2007).
2. The Tenth Circuit Court of Appeals has federal jurisdiction over Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma.
3. 2007 WL 3046321 at *3.
4. Id. at *4 (citations and quotations omitted).
8. Id. at *5.