Civilians and police officers pose similar questions about police shootings of unarmed suspects: Can police shoot an unarmed suspect? Is it ethical? Is it legal? Civilians often add these questions: Why couldn t the police just hit him with their baton or pepper spray? Why couldn t the police just shoot him in the knee? But when faced with a decision to shoot and their safety in jeopardy, police officers must ask themselves these questions: Can I be reasonably sure the suspect is unarmed? Could the suspect take my weapon? What do I know about the suspect s past? What s the suspect s state of mind? How will I get home safely?
Recently, a federal appeals court looked at precisely these questions from the perspective of a police officer in DeLuna v. City of Rockford. From this perspective, the court allowed those questions to be considered when making a decision to shoot an unarmed suspect, and held that, although unarmed, the suspect s conduct presented an immediate threat to the officer s safety and justified the shooting.
In the early morning hours of March 29, 1998, a Rockford, Ill., police officer responded to a 911 dispatch of a domestic disturbance at the residence of Luis Roberto DeLuna. The officer was familiar with the residence because he d been there only eight days earlier on a similar call. During that incident, police arrested DeLuna, who was intoxicated. The officer learned from DeLuna s wife that DeLuna was known to carry weapons and had a history of violence, and he noted DeLuna had an extensive arrest record. He later learned from other officers that in the holding cell, DeLuna grew very violent, punching and slamming his head against the cement walls.
On this second visit to the home, the officer exited his vehicle and began walking toward the front of it. He suddenly observed a shirtless DeLuna standing in the dark outside the residence. The officer asked, What s going on? DeLuna responded, I ve got something for you. You re going to have to kill me.
The officer drew his gun and told DeLuna to raise his hands. DeLuna did not comply and began walking toward the officer with his arms extended to his sides. From his viewpoint, the officer didn t know if DeLuna had any weapons tucked in his waistband behind him, and as DeLuna came closer to the officer, the officer began to walk backward. The officer walked backward 40 50 feet, eventually stumbling over a dirt hole and a black plastic pipe that was hooked to a downspout from the roof of the residence. As the officer attempted to regain his balance, DeLuna lunged toward him. Fearing that DeLuna was either reaching for a weapon behind his back, or attempting to reach the officer s weapon, the officer fatally shot DeLuna. The officer was on scene for only one minute and 25 seconds before the shooting occurred.
DeLuna s wife filed a lawsuit in the federal district court on her own behalf and that of their children and DeLuna s estate, alleging Fourth Amendment violations and wrongful death. The district court, however, found the defendant police officer acted reasonably, and granted summary judgment in favor of the City of Rockford and its police officers. DeLuna s estate appealed.
The Legal Opinion
Applying long-standing Fourth Amendment case law, the 7th U.S. Circuit Court of Appeals first considered DeLuna s estate s claims arising out of DeLuna s death. The court found that the facts themselves were sufficient to establish imminent danger to the officer as to render deadly force reasonable. The court then compared a similar case decided in the 10th Circuit Court in which the officer was also found to have acted reasonably in light of his particular shooting of an unarmed suspect.
The 7th Circuit in DeLuna held that the police officer s use of deadly force under the Fourth Amendment would not violate DeLuna s constitutional rights if the use of that force was reasonable. Citing Graham v. Connor, the court stated, Reasonableness is not based on hindsight, but rather is determined considering the perspective of the officer on the scene, allowing 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 that is necessary in a particular situation. The focus then is on whether the actions of the officer are objectively reasonable. This means the courts must evaluate reasonableness under the Fourth Amendment by examining the totality of the circumstances from the perspective of the police officer on scene. Therefore, if an officer believes the suspect s actions place the officer, or others in the immediate vicinity, in imminent danger of death or serious bodily injury, they can reasonably use deadly force. In this case, DeLuna s estate conceded to the facts as considered by the court. However, under the wrongful death claim, DeLuna s estate suggested the officer s own reckless actions caused the situation to escalate. They argued the officer failed to follow department policy that would have required him to wait for backup unless the situation demanded immediate action. The court disagreed. The court found that the officer merely exited his vehicle and walked toward the front when he observed DeLuna outside the residence. The court further determined it was DeLuna s action in walking toward the officer that escalated the encounter, not any action by the officer. The court held that regardless of whether the officer saw a weapon or believed DeLuna was reaching for the officer s weapon, DeLuna s action in lunging toward the officer, after the threats and bizarre conduct, established a real danger of imminent serious bodily injury. The court stated the officer need not wait until there is a physical struggle for control of his weapon before a situation presents an imminent danger of serious physical injury.
Blossom v. Yarbrough
In the 10th Circuit comparison case, Blossom v. Yarbrough, the court held the fact that the offender was unarmed is not outcome determinative. Under the circumstances, the court found the suspect s actions posed an immediate threat to the safety of the deputy, and that the use of deadly force was reasonable.
In that case, an officer responded to a call of an intoxicated person who refused to get out of someone s car. As the officer approached the scene, he observed the suspect, Jeremy Pickup, begin to walk away. After a witness identified and pointed to Pickup, the officer identified himself and asked Pickup to stop. During a small exchange of words, the officer detected an odor of alcohol coming from Pickup. The officer, who stood at 5'11" and weighed 180 lbs., sized up Pickup, who was 6'4", 265 lbs., and called for a backup.
The officer asked Pickup to sit on the curb, but suddenly Pickup grabbed the officer s protective vest and pulled on it. The officer immediately pushed Pickup, pulled away and drew his weapon, ordering Pickup to get on the ground. Pickup, refusing to comply, ran away. When Pickup ran behind a building, the officer lost sight of him. With his weapon drawn, the officer proceeded in the direction he thought Pickup ran. Suddenly, Pickup jumped out from behind a stack of pallets and ran at full speed toward the officer, screaming, I m going to take that gun and shove it up your ass. The officer ran backward as far as he could, ordering Pickup to get on the ground and shouting several warnings that he would shoot if Pickup didn t comply. When he could no longer back up, the officer fatally shot Pickup as Pickup lunged for the officer s gun.
The 10th Circuit Court, as did the 7th Circuit, analyzed the use of deadly force using the objective reasonableness standard under the Fourth Amendment by examining the totality of the circumstances. When reviewing the totality of the circumstances, the court considered whether the officer s reckless conduct unreasonably created the need to use such force. As such, Pickup s estate argued the officer created that need by pushing the suspect after the suspect grabbed the officer s protective vest, following the suspect without waiting for backup, not carrying and using a baton or OC spray to subdue the suspect, and not conducting a preliminary investigation to discover the suspect s nature and character. However, the court stressed it is well settled that the reasonableness standard does not require that officers use alternative, less intrusive means when confronted with a threat of serious bodily injury. Further, the court stated it has previously rejected the argument that only a suspect armed with a deadly weapon poses a physical threat sufficient to justify the use of deadly force.
Ultimately, the decision to shoot an unarmed suspect belongs to the individual police officer based on the totality of the circumstances at the time of the incident. In this sense, the court allows you, the professional police officer, to assess your own particular situation. Therefore, you better know your limitations, establish a quick understanding of your suspect, be aware of your surroundings and get a good perspective of your situation. Moreover, make sure you can verbalize these observations. Also, in evaluating the totality of the circumstances, the court may consider whether your conduct unreasonably created the need to use deadly force. Here, you must have a solid balance of tactical and legal knowledge.
When it comes to shooting unarmed suspects, police officers should be on the same page philosophically. Despite how the public views the shooting of an unarmed suspect, it s you that could ultimately get hurt physically or legally. The courts seem to understand this.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1. 447 F.3d 1008 (7th Cir. 2006).
2. 447 F.3d at 1013.
3. Id. at 1010.
4. Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989).
5. DeLuna, 447 at 1013.
6. Blossom v. Yarbrough, 429 F.3d 963 (10th Cir. 2005)).
7. DeLuna, 447 at 1010 (citing Graham v. Connor, 490 U.S. at 396-97).
8. Id. at 1012.
9. Id. at 1013.
11. 429 F.3d 963 (10th Cir. 2005)
12. Blossom, 429 F.3d at 968.
Laura Scarry thanks Sam Bonilla for his valued assistance in drafting this article. Bonilla is an associate attorney in the law offices of DeAno & Scarry. He is a former Bloomingdale (Ill.) police officer with nine years experience and a Marine veteran of the Persian Gulf War.