CopLaw Update

December 1, 2008

The below case law excerpts are offered to provide case law justification for an officer to 'brandish' and or 'use' his firearm to confront and overcome deadly force threat. After reading the material, I offer the link to the in car video of Game Warden Justin Hurst being shot and killed in order to place the written 'context' into a street 'context' of objectively reasonable facts and circumstances.

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. . . . And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’’ Terry v. Ohio, supra, 392 U.S. 27. 1968

 ‘‘‘The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness.’ United States v. Harley, 682 F.2d 398, 402 [2d Cir. 1982].’’

Law enforcement officials are trained to cull significance from behavior that would appear innocent to the untrained observer.’’ United States v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005); Terry v. Ohio, 392 U.S. 1, 19 (1968) (holding that the court must determine “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”). As the Supreme Court has stated, “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, 392 U.S. at 23. ("[A] police officer views the facts through the lens of his police experience and expertise. . . . [A] police officer may draw inferences based on his own experience in deciding whether probable cause exists."; Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)

In order to demonstrate reasonable suspicion, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21. These facts must be “judged against an objective standard: would the facts available to the officer at the moment of seizure . . . ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Id. at 21-22. In order to decide if a seizure is reasonable, the court must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20.

 “A free citizen’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of his person” is “properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard. . . .” Graham v. Connor, 490 U.S. 386, 387 (1989). Under Graham, “[t]he reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officer’s actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. Courts conducting this reasonableness inquiry must evaluate the specific facts of the case, “[i]ncluding the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.

"[an] officer need not be absolutely certain that [an] individual is armed; [rather] the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." Id. Thus, "[r]easonable and articulable suspicion is an objective standard";  State v. Trine, supra, 236 Conn. 224; based not on the officer's "inchoate and unparticularized suspicion or `hunch,' but [on] the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry v. Ohio, supra, 27.

 The United States Supreme Court has endorsed an objective standard, noting that "evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer." State v. Eady, supra, 249 Conn. 441, quoting Horton v. California, 496 U.S. 128, 138, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

The police officer's decision . . . must be based on more than a hunch or speculation. . . . In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Gant, 231 Conn. 43, 65, 646 A.2d 835 (1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). He was not required to ignore reasonable safety concerns to the point of his own peril. State v. Escobales, 16 Conn. App. 272, 275, 547 A.2d 553, cert. denied, 209 Conn. 827, 552 A.2d 434 (1988), cert. denied, 490 U.S. 1023, 109 S. Ct. 1753, 104 L. Ed. 2d 189 (1989). "Determination of the means that are reasonably necessary to maintain the status quo necessarily depends upon a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect." Id.

 . . .the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them...arresting officers need not use the least intrusive means of responding to an exigent situation, but only need to act within a range of reasonable conduct which would avoid inducing tentativeness by the police in protecting the public and themselves, and avoid forcing ... second guessing of police decisions made under stress and exigencies of the moment...requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment...

 Police officers may use... "such degree of force to effect a seizure as is reasonably necessary"...Determining whether the force to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. (The test is not mechanical or scientific but is rather discretionary and is based in the articulated perceptions of the officer confronting the immediate/imminent threat.) The appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them. requiring officers to find and use the least intrusive alternative would require them to exercise superhuman judgment ( Scott v. Henrich 978 F.2d 481 (9th Cir. 1992)

 In United States v. Perea, 986 F.2d 633 (2nd Cir 1993) this court elaborated the factors central to determining whether an encounter between the police and a suspect is an arrest or merely a Terry stop. Specifically, we explained that pertinent considerations include:

 …the amount of force used by police, the need for such force, and the extent to which the individual's freedom of movement was restrained,...and in particular such factors as the number of agents involved...;whether the target of the stop was suspected of being armed ...;the duration of the stop...;and the physical treatment of the suspect...,including whether or not handcuffs were used." Whether a seizure is an arrest or merely an investigatory detention, depends on the reasonableness of the level of intrusion under the totality of the circumstances (Posr v. Doherty, 944 F2d 91 (2d cir 1991)).

 ...police officers are entitled to wide degree of latitude in their handling of dangerous situations...The issue is not whether the plaintiff's arrest could have been better handled, but rather whether the officers were "plainly incompetent" and their actions "clearly proscribed" by existing law... in our view a jury could not find that the conduct was so deficient that no reasonable officer could not have made the same choice... Roy v. Inhabitants of Lewiston, Maine, CA 1 U.S. Court of Appeals - 1st Circuit No.94-1260 12/21/94.

 Plakas v. Drinski 19 F3d 1143 (7th Cir. 1994)

There is no precedent in this Circuit or any other which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used...there may be state laws which require an officer to retreat but this would not impose a constitutional duty...If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable...

 State v. Braxton, 196 Conn. 685 (1985)... Determination of the means that are reasonably necessary to maintain the status quo necessarily depends upon a fact‑bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect ... an officer is permitted to make reasonable use of the resources at his disposal at the site of the investigative stop ...

 New York v. Quarles 467 U.S. 649 (1984)...  when an officer is confronted with spontaneous instincts adherence to a police manual hinders safety ... limited to cases where a genuine need for police officers to protect themselves or the public...on the scene judgments follow legitimate instincts when confronted with situations presenting a danger to self or others...in a kaleidoscopic situation ... where spontaneity rather than adherence to the police manual is necessary...the officer acted out of instinctive motives for personal safety as well as the safety of others ... only allowed where there is a genuine need for the police officers to protect themselves or the public.

  ..police officers are entitled to wide degree of latitude in their handling of dangerous situations...The issue is not whether the plaintiff's arrest could have been better handled, but rather whether the officers were "plainly incompetent" and their actions "clearly proscribed" by existing law... in our view a jury could not find that the conduct was so deficient that no reasonable officer could not have made the same choice... Roy v. Inhabitants of Lewiston, Maine, CA 1 U.S. Court of Appeals - 1st Circuit No.94-1260 12/21/94.

State v. Escobales, 16 Conn App. 272 (1988)... a policeman, making a reasonable investigative stop should not be denied the opportunity to protect himself from attack by a hostile suspect. Officers are afforded a minimal intrusion designed to insure his/her safety. A police officer "need not defer, " protective measures to the point of peril" A police officer should not be made to choose between his own safety and what could later be construed as an illegal search and seizure.

 "Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, [392 U.S. 1, 22-27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]. Because `[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,' Bell v. Wolfish, 441 U.S. 520, 559 [99 S. Ct. 1861, 60 L. Ed. 2d 447] (1979), however, 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 the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id., 396. A claim that excessive force was used in the course of a seizure is subject to an objective test of reasonableness under the totality of the circumstances, which requires consideration of the specific facts in each case, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of others and whether he is actively resisting arrest. See Graham v. Conner, 490 U.S. 386, 395-96 (1989); Hemphill v. Schott, 141 F.3d 412, 416-17 (2d Cir. 1998).

 The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.... 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. . .In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights. See, e.g., Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). The availability of the defense depends on whether "'a reasonable officer could have believed'" his action "'to be lawful, in light of clearly established law and the information [he] possessed.'" Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (quoting Anderson v. Creighton, 483 U.S. at 641). Qualified immunity does not protect those who are "'plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion….State v Gant, 231 Conn 1994.

 The defendants note that "often burglars are armed or have stolen handguns from the house that they burglarized." the defendant's thus seem to suggest that the mere fact that the plaintiffs were suspected of a burglary provided the police with a reasonable fear and that they were armed and dangerous. However, suspecting a person of having committed a burglary cannot in and of itself, provide police with grounds to subject that person to an extremely intrusive Terry stop. Generalizations without more is insufficient to justify an extensive intrusion.

 U.S. v. Johnson, 1995 W.L. Pennsylvania..."...one officer's reasonable belief is not necessarily what a reasonable officer would have believed..."... If reasonable officers could differ as to the reasonableness of conduct, the shield of immunity is not lost...Malley v. Briggs 475 U.S. (1985).

There is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails...actions and things observed by an experienced law enforcement officer may have more significance to him...than they would have to a layman...The Connecticut Supreme Court has held that a nervous appearance is a legitimate consideration in analyzing whether a search for weapons is reasonable... State v Dukes 209 Conn. 98 121 (1988)...(2) ...frisk the suspect to determine if the person is carrying a weapon once a reasonable and articulable suspicion exists. Terry v Ohio 392 U.S. 1 (1968)...(3)...

 U.S. v. Gonzales, CA 5, No. 93-9046 - 12/12/94 U.S. Court of Appeals - 5th Circuit...Pointing gun without verbalizing threat is only "Brandishing" under sentencing guidelines.

 ...brandished means that  "the weapon was pointed or waved about or displayed in a threatening manner," whereas "otherwised used" means "that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm ..."

The fact that the gun was pointed at one specific victim makes no difference... otherwised used a gun involves explicit, verbal threats to shoot. The implicit threat of aiming a weapon in a threatening manner toward a specific victim without verbalizing a threat to Shoot or kill is mere brandishing not the higher level of using a weapon.

 ...omniscience is not the presumed mindset with which an objectively reasonable police officer approaches life-endangering decisions. The correct focus must be on the significance an objectively reasonable police officer might attach to the threatening action, in circumstances where he could not know, with assurance, the suspect's exact state of mind or intent. Cf., e.g., Gibson v. Officer, P.A., 44 F.3d 274, 277-78 (5th Cir. 1995) (proper focus is not upon factual dispute as to whether suspect was intoxicated, but whether objective facts might lead a reasonable officer so to conclude); Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991) (police officer's belief that  suspect was reaching for gun was "reasonable" even though object turned out to be a bottle).

 "[t]he amount of force that is constitutionally permissible ...must be judged by the context in which that force is deployed." Ikerd v. Blair , 101 F.3d 430, 434 (5th Cir. 1996).

 Pride v. Does, 997 F.2d 712 (10th Cir. 06/15/1993)

The law cannot demand that officers be mind readers.

"identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). . ."the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397.We Judge the reasonableness of the force used not with the "20/20 vision of hindsight" or from the serenity of chambers but from the perspective of the officer on the scene, allowing for the split-second nature of most law enforcement decisions. From that vantage point, we pay "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 the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Dixon v. Richer, 922 F.2d 1456, 1462-63 (10th Cir. 1991). . .the relevant question for the court is not whether Pride acted in a threatening manner but whether Officer Lamb reasonably believed so.  Hunter, 112 S. Ct. at 537.

 "[A]ll claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard ...." Graham v. Connor, 490 U.S. at 395  A determination of reasonableness under the Fourth Amendment "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396 (internal quotation marks and citations omitted). Evaluation of a particular use of force "must be ... from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id., citing Terry v. Ohio, 392 U.S. at 20-22. Again, even if defendants' actions were unreasonable under current law, "[q]ualified immunity ... protects officers from the sometimes `hazy border between excessive and acceptable force.'" Saucier v. Katz, 121 S. Ct.2151, 2158 (2001). "If the officer's mistake as to what the law requires is reasonable ... the officer is entitled to the immunity defense." Id. Terry v. Ohio, 392 U.S. 1 (1968).

Editor's Comment: Threat is not a speculation or based on mere suspicion. Threat is filtered through a reasonable officer's common sense, derived from training and experience, to determine "rational inference" conduct. Real Threat is of such a convincing character that a reasonable officer would not hesitate to conclude and thus to re-act. Reasonable doubt is not "substantial doubt"...Reasonable likelihood is not "substantial certainty"...

Soares v. Connecticut, 8 F.3d 917 (2nd Cir. 11/02/1993)

To establish this defense at the summary judgment stage, the officers must show upon facts that are undisputed "either that [their] conduct did not violate 'clearly established rights' of which a reasonable person would have known, or that it was 'objectively reasonable' to believe that [their] acts did not violate these clearly established rights." Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990); see also Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).

…in order to sustain a claim for the constitutional tort of use of excessive force, a plaintiff must show that the officer intended to use force. O'Neill v. Krzeminski, 839 F.2d 9, 11 n.1 (2d Cir. 1988). Toward that end, a plaintiff may introduce evidence to show that the complained of conduct was committed with actual malice in order to make out the element of intent.

SECTION 1983 FAILURE TO TRAIN

In order to state a claim for municipal failure to train pursuant to § 1983, a plaintiff must allege a link between the violation of his constitutional rights and municipal policy or custom. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 1203 (1989); Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2037-38 (1978). Such a policy or custom need not be explicit, but may be inferred circumstantially by a showing "deliberate indifference" by one of two methods: (1) supervisory officials made a "deliberate choice" not to fully train its employees despite an obvious need for training in light of the inadequacy thereof and the likelihood of violation of constitutional rights, see City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989); or (2) its supervisory officials "knew about a pattern of constitutionally offensive acts by their subordinates and failed to take remedial action in response thereto" such that they were deliberately indifferent, Watkins v. City of Buffalo, No. 95-CV-0816E SC, 1999 WL 1068239, at *3 (W.D.N.Y. Nov. 12, 1999). See also Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) ("The inference that such a policy existed may arise from 'circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'") (quoting Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) ("[M]unicipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell.")

To establish deliberate indifference,  three elements are necessary: (1) policymakers knew "to a moral certainty" that its employees will encounter a given situation, Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992) (quoting Canton, at n.10); (2) that the situation would either present the kind of difficult decision for an employee that training or supervision would ameliorate, or a history of employees mishandling the situation; and (3) a deprivation of a citizen's constitutional rights will frequently result from an employee's mishandling of the situation. Walker, 974 F.2d at 297-98. "Deliberate indifference" constitutes more than "simple or even heightened negligence"; it involves a "conscious disregard" on the part of municipal employees for the consequences of their actions. Board of the County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 1390, 137 L.Ed.2d 626 (1997).

State v. Wylie, 10 Conn. App. 683 (1987)

 "While the mere fact that an officer has been informed that a person is carrying a weapon may not of itself constitute grounds to frisk that person, in light of the fact that it is not illegal to carry a weapon with a permit, the defendant's flight and subsequent movements concerning the weapon would make it reasonable for the officer to consider him 'dangerous'." The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of the police are all facts which bear on the issue of 'reasonableness'.

   State v. Wilkins 240 Conn.489 April ,1997

"Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have that level of suspicion…the police officer’s decision …must be based on more than a hunch or peculation…(State v. Gant, 231 Conn.43(1994).

 The Supreme Court has stated that the immunity accorded officials by this doctrine protects "all but the plainly incompetent or those who knowingly violate the law," and added that "if officers of reasonable competence could disagree on [the legality of an act], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986). Since it is not disputed here that freedom from false arrest, from malicious prosecution, and from the use of excessive force are all clearly established rights, see Cook v. Sheldon, 41 F.3d 73, 77, 79 (2d Cir. 1994); Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied sub nom. Lillis v. Golino, 505 U.S. 1221 (1992), the question of qualified immunity in this case turns on whether the actions of Officer Grant and the other officers were objectively reasonable under the circumstances.

 Courts evaluating probable cause for an arrest must consider those facts available to the officer at the time of the arrest and immediately before it. See Warren v. Dwyer, 906 F.2d 70, 73 (2d Cir.), cert. denied, 498 U.S. 967 (1990). Probable cause exists when there are "facts and circumstances `sufficient to warrant a prudent man that the [suspect] had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111 (1975) .

Once again, probable cause for an arrest must be determined on the basis of the information reasonably available to the arresting officer at the time of the arrest.

 To succeed on a Fourth Amendment excessive force claim, a plaintiff must show that the amount of force used was "objectively unreasonable." Finnegan v. Fountain, 915 F.2d 817, 821, 823 (2d Cir. 1990). In determining whether the force used by a police officer was reasonable, the court must, once again, consider the perspective of the officer at the time of the arrest, taking into account the fact that the officer may have been required to make a split-second decision. Graham v. Connor, 490 U.S. 386, 397 (1989).

 Tennessee v Garner

For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful balancing [471 U.S. 1, 26] of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U.S. 696, 703 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . .necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Terry v. Ohio, 392 U.S. 1, 20 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances.

 Salim v. Proulx, 93 F.3d 86 (2d Cir. 08/23/1996)

 Merits of Qualified Immunity Defense

The right to be free of excessive force is clearly established. See Lennon, 66 F.3d at 423. That there are constitutional limitations on the use of deadly force during the course of an arrest is also clearly  established. See Graham, 490 U.S. at 395-96 (citing Tennessee v. Garner, 471 U.S. 1 (1985)). Therefore, in the circumstances of this case, Officer Proulx's entitlement to qualified immunity depends on an assessment of the objective reasonableness of the belief that his conduct did not violate Eric's right to be free of excessive force. [36] At the moment when Officer Proulx used deadly force against Eric, it was objectively reasonable for the officer to view the use of deadly force as not excessive in the circumstances presented to him. The objective reasonableness test is met if "officers of reasonable competence could disagree" on the legality of the defendant's actions. Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court has made it clear that an  officer's actions are not to be assessed with 20/20 hindsight. rather, "qualified immunity serves to protect police from liability and suit when they are required to make on-the-spot judgments in tense circumstances."

 In determining whether the force used to effect a particular seizure is reasonable, a court must examine "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 the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8-9). In the circumstances of this case, the "immediate threat" criterion controls the outcome of this Court's evaluation. Although plaintiff attempts to characterize the situation as one in which an officer unreasonably used deadly force to complete an arrest or to prevent the escape of a non-felon, see, e.g., Garner, 471 U.S. at 11-12 (restricting circumstances in which police may employ deadly force in apprehending fleeing felons), this case is more properly viewed as one in which an officer used deadly force in self-defense. See Fraire v. City of Arlington, 957 F.2d 1268, 1274-75 (5th Cir.), cert. denied, 506 U.S. 973 (1992); Garcia v. United States, 826 F.2d 806, 812 (9th Cir. 1987).

. . .no rational jury could find that Officer Proulx's decision to use deadly force "was so flawed that no reasonable officer would have made a similar choice." Lennon, 66 F.3d at 425.

Officer Proulx's actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force. The reasonableness inquiry depends only upon the officer's knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force. See Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995) ("[E]vidence that [the officers] created the need to use [deadly] force by their actions prior to the moment of seizure is irrelevant . . . .");  Fraire, 957 F.2d at 1275-76 (same); Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992) (same); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991) (same). At the moment Officer Proulx employed deadly force against Eric, it was objectively reasonable for him to believe that his actions did not violate Eric's constitutional rights. *fn5 Furthermore, even if plaintiff conclusively established that Officer Proulx acted negligently, an issue on which we express no opinion, a claim that a state actor acted negligently does not state a deprivation of constitutional rights. See Daniels v. Williams, 474 U.S. 327, 328 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986).

 Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 03/21/1994)

 It is a self-defense case where the officer has "probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer" and, therefore, the officer may use deadly force. Tennessee v. Garner, 471 U.S. 1, 3, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). Indeed, had Drinski been a private citizen, he would have been entitled to claim self-defense under Indiana law (which does not have a rule of retreat). French v. State, 273 Ind. 251, 403 N.E.2d 821, 823, 825 (Ind. 1980); Montague v. State, 266 Ind. 51, 360 N.E.2d 181, 188-89 (Ind. 1977).

 There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.*fn5 There are, however, cases which support the assertion that, where deadly force is otherwise justified under the Constitution, there is no constitutional duty to use non-deadly alternatives first. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Twice the police called out, "Halt, police," but the plaintiff may not have heard. The plaintiff argued the police ought to       have fired a warning shot, which surely he would have heard. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Id. at 1276, n.8. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992), it was claimed that the       police had so poorly planned an arrest that the chance of a deadly gunfight was increased rather than minimized. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. In Carter, such an alternative was not merely speculative; the arrestee was employed inside a prison where he would not have had a gun on his person.

Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect     a legal arrest of a suspect." Id. at 1332. These cases make it clear that liability cannot be founded on the failure of Drinski to keep some sort of distance or natural barrier between himself and Plakas. The Fourth Amendment does not require officers to use the least  intrusive or even less intrusive alternatives in ordering search and seizure cases.

The only test is whether what the police officers actually did was reasonable. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976).

 We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable under Garner v. Tennessee and Graham v. Connor, supra.

 There is, however, not a single precedent which holds that a governmental unit has a constitutional duty to supply particular forms of equipment to police officers. And, in fact, the Fifth Circuit has held that the Constitution "does not mandate that law enforcement agencies maintain equipment useful in all foreseeable situations." Salas v.Carpenter, 980 F.2d 299, 310 (5th Cir. 1992). Indeed, Plakas merely states this theory, he does not argue it. Nor does he show how such a rule of liability could be applied with reasonable limits. We do not think it is wise policy to permit every jury in these cases to hear expert testimony that an arrestee would have been uninjured if only the police had been able to use disabling gas or a capture net or a taser (or even a larger number of police officers) and then decide that a municipality is liable because it failed to buy this equipment (or increase its police force).

There can be reasonable debates about whether the Constitution also enacts a code of criminal procedure, but we think it is clear that the Constitution does not enact a police administrator's equipment list.*fn7 We decline to use this case to impose constitutional equipment      requirements on the police.*fn8

"'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."

 It is well established that "use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness." Saucier v. Katz, 533 U.S. 194, 201-02 (2001) (citing Graham v. Connor, 490 U.S. 386 (1989)). However, identifying the generalized constitutional protection is not enough; the law must be "clearly established in a more particularized sense," Kerman, 261 F.3d at 236, that is, "in the specific context of the case." Saucier, 533 U.S. at 201. The Supreme Court has recently made clear that even officers who are found to have used excessive force may be entitled through the qualified immunity doctrine to an extra layer of protection "from the sometimes hazy border between excessive and acceptable force." *fn11 Id. at 206 (internal citation omitted). The relevant inquiry "is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202; see Loria, 306 F.3d at 1286 ("Said differently, . . . we analyze the objective reasonableness of the officer's belief in the lawfulness of his actions."); see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that "the salient question" is whether the state of the law at the time of the violation gave officers "fair warning"). Thus, as the Supreme Court has pointed out, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Saucier, 533 U.S. at 202 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Read according to its plain language, and as a whole, doubtlessly CGS 53a-19 contemplates that a person may respond with physical force to a reasonably perceived threat of physical force… General Statutes 53a-19 provides in pertinent part: USE OF PHYSICAL FORCE IN DEFENSE OF PERSON. (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm . . . "

First, the jury must determine whether the defendant did, in fact, reasonably believe that deadly force was necessary. State v. Prioleau, supra, 235 Conn. 284. If the jury so finds, it must then determine whether that subjective belief was objectively reasonable.

It is well established that "the correct standard regarding the test for the degree of force in self-defense is the subjective-objective one set forth in State v. Corchado, supra [188 Conn. 663]. In Corchado [our Supreme Court] noted that § 53a-19 focuses on the person, here the defendant . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact. . . . Further, our Supreme Court has concluded that "[t]he jury must view the situation from the perspective of the defendant. . . . [T]he defendant's belief ultimately must be found to be reasonable." State v. DeJesus, supra, 194 Conn. 389 n.13.

 The permissible degree of force used in self-defense depends upon that which is necessary under all the circumstances to prevent an impending injury."

 State v. Smith, 73 Conn. App. 173, 807 A.2d 500 (Conn. App. 10/22/2002)

 A police officer is justified in using deadly physical force under the relevant self-defense statute, § 53a-22, *fn4 only when (1) he reasonably believes such force to be necessary (2) to defend himself or a third person from the use or imminent use of deadly physical force.

 We agree that the reasonableness of the defendant's belief under § 53a-22 should be evaluated pursuant to the subjective-objective formulation. Under that test, the jury must first determine whether, on the basis of all the evidence, the defendant in fact honestly believed that deadly force, rather than some lesser degree of force, was necessary to repel the victim's alleged attack. See id. If the jury determines that the defendant honestly believed that deadly force was necessary, it then turns to the second, or "objective," part of the test. Here, the jury's inquiry requires it to determine whether the defendant's honest belief was reasonable. *fn5

 The defendant argues that this evidence was admissible to show the objective reasonableness of his belief that the use of deadly force was justified, judged against the "reasonable peace officer" standard. We agree…. analyzing the defendant's state of mind and his conduct during the forty seconds that elapsed between the time when he first encountered the victim and when he fired the shot that killed the victim. We agree.

 Two statutes, § 53a-19 and § 53a-22, authorize the use of deadly force in self-defense. Section 53a-19, the civilian, or non-peace officer self-defense statute, is entitled "[u]se of physical force in defense of person." It provides in relevant part for the use of deadly force in self-defense, with several relevant exceptions that we note, as follows: "[A] person is justified in using ... deadly physical force [only if] the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm." (Emphasis added.) General Statutes § 53a-19 (a).

 Section § 53a-22, entitled "[u]se of physical force in making arrest or preventing an escape," applies to peace officers. It provides in relevant part: "A peace officer . . . is justified in using deadly physical force upon another person [to effectuate an arrest or to prevent an escape, or to defend himself or a third person from the use or imminent use of physical force while doing so] only when he reasonably believes such to be necessary to:

(1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force." General Statutes § 53a-22 (c).

We conclude that the test for evaluating self-defense claims pursuant to § 53a-22 is a subjective-objective test. The jury is required, first, to determine whether the defendant honestly believed that the use of deadly force was necessary in the circumstances. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable police officer in the defendant's circumstances. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (evaluating reasonableness of police officer's belief that deadly force justified in context of fourth amendment excessive use of force claims, stating that "[t]he [objective] 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"); Weyel v. Catania, 52 Conn. App. 292, 296, 728 A.2d 512 (all claims that law enforcement officers have used excessive force in the course of an arrest, whether deadly force or not, should be analyzed under the reasonableness standard of the fourth amendment), cert. denied, 248 Conn. 922, 733 A.2d 846 (1999). *fn12

 Allard's testimony regarding the training that the defendant received on the use of deadly force was relevant to the defense. It did not invade the province of the jury on the ultimate issue of fact. Rather, it would have permitted the defendant to establish his defense by assisting the jury in evaluating whether his beliefs did in fact comport with the standard of a reasonable peace officer.

 As discussed in part II, the test for determining whether a police officer's use of deadly force was reasonable is to be judged according to the subjective/objective formulation used in evaluating self-defense claims under § 53a-19. With respect to the objective part of the test, however, the reasonableness is to be judged from the perspective of a reasonable police officer. Here, the court refused to so instruct. On remand, and upon the proper factual showing at the trial warranting an instruction on self-defense, the court must instruct on self-defense under § 53a-22 consistent with the test elucidated in this opinion.

 *fn5 The objective part of the test under General Statutes § 53a-19 requires the jury to measure the defendant's honest belief against the standard of a reasonable person in the defendant's circumstances. State v. Prioleau, 235 Conn. 287. As we will discuss, we agree with the defendant that in addressing the objective part of the test under General Statutes § 53a-22, however, the standard is that of a reasonable peace officer.

 General Statutes § 53a-22, entitled "[u]se of physical force in making arrest or preventing escape," provides in relevant part: "(a) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of physical force to make an arrest or to prevent an escape from custody.

A peace officer . . . who is effecting an arrest pursuant to a warrant or preventing an escape from custody is justified in using the physical force prescribed in subsections (b) and (c) of this section unless such warrant is invalid and is known by such officer to be invalid. "(b) Except as provided in subsection (a) of this section, a peace officer . . . is justified in using physical force upon another person when and to the extent that he reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or custody is unauthorized; or (2) defend himself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape. "(c) A peace officer . . . is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force...."

 REASONABLE DEGREE OF FORCE

State v. Lemoine, 256 Conn. 193, 770 A.2d 491 (Conn. 05/15/2001)

Section 53a-19 (a) provides that the defendant "is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force . . . ." Furthermore, in State v. Prioleau, supra, 235 Conn. 285-86, we held that "a person may justifiably use deadly physical force in self-defense only if he reasonably believes both that: (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such attack." "Thus, if a jury determines that the defendant's honest belief that he had needed to use deadly force, instead of some lesser degree of force, was not a reasonable belief, the defendant is not entitled to the protection of § 53a-19." Not only must the defendant's belief in the type of threat facing him have been reasonable, but, under the wording of the statute, the degree of force used in response must be evaluated for reasonableness as well. …even where there is no duty to retreat when one is faced with deadly force, it is conceivable that it would be unreasonable to continue to use deadly force after rendering the aggressor incapacitated. …our decision in State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984), rejecting the "heat of passion" defense. In DeJesus, this court wrote: "The `heat of passion' principle urged by the defendant entitles a defendant claiming self-defense to use excessive force that follows closely upon any incapacitating force as long as the defendant believes that he is fighting for his life. . . . The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant's belief ultimately must be found to be reasonable. We, therefore, reject the `heat of passion' principle as claimed by the defendant."

Ricketts v. City of Hartford, 74 F.3D 1397 (2d Cir. 01/17/1996)

In Graham, the Supreme Court set forth when evidence of subjective intent may be relevant to a determination whether the police used excessive force in arresting an individual:

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. . . .

As in other Fourth Amendment contexts, . . . the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.. . . [A test that] requires consideration of whether the individual officers acted in "good faith" or "maliciously and sadistically for the very purpose of causing harm," is incompatible with a proper Fourth Amendment analysis.

We do not agree with the Court of Appeals' suggestion that the "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances. Whatever the empirical correlations between "malicious and sadistic" behavior and objective unreasonableness may be, the fact remains that the "malicious and sadistic" factor puts in issue the subjective motivations of the individual officers, which our prior cases make clear ha[ve] no bearing on whether a particular seizure is "unreasonable" under the Fourth Amendment. . . .

However, the Supreme Court has recognized two exceptions to this rule. First, as explained in a footnote in Graham, "in assessing the credibility of an officer's account of the circumstances that prompted the use of force, a factfinder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen." 490 U.S. at 399 n.12 . Second, punitive damages are generally available in an action pursuant to 42 U.S.C. 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983); see also Jeffries v. Harleston, 21 F.3d 1238, 1249 (2d Cir.), vacated on other grounds, 115 S. Ct. 502 (1994). Punitive damages are also available under Connecticut law when "wanton or wilful malicious misconduct" is proven. Markey v. Santangelo, 485 A.2d 1305, 1307 (Conn. 1985); see also Bates v. McKeon, 650 F. Supp. 476, 481-82 (D.Conn. 1986).

 BATES v. MCKEON, 650 F. Supp. 476 (D. Conn. 11/20/1986)

Bates made a sudden, violent, and quick motion with her upper body in an attempt to break free. The police officers who applied force to Bates did so in direct response to her aggressive and violent actions, and that the force applied was a direct, measured, and proportionate response to her aggression and violence. There is no credible evidence to support the proposition that force was used maliciously or sadistically or for the purpose of causing harm to Bates. McKeon, Bartha and Avdevich acted in good faith and with the sole and reasonable objective of subduing Bates.

 In determining whether the constitutional line has been crossed, the court must "look[ ] to the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted and whether forces was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). The force applied to Bates which resulted in the fracture of her arm was not, in the circumstances proved at the trial, excessive.

 "A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was a voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional." Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). "A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances." Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may also be satisfied if the resultant harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). "It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 (1929). Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305, 1307 (1985).

Blake v. City of New York, No. 05 Cv. 6652 (S.D.N.Y. 07/06/2007)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

No. 05 Cv. 6652 (BSJ)

Deadly Force… Defendants ask the Court to decide as a matter of law that the use of a properly trained police dog to apprehend a suspect by biting cannot constitute deadly force… Plaintiffs argue that a properly trained police dog can constitute deadly  force, and they ask the Court to submit the deadly force question to the jury.

 This was an important issue before Scott because jurors were instructed to apply more stringent standards in deadly force cases than in cases that did not involve deadly force. See Tennessee v. Garner, 471 U.S. 1, 3 (1985). Essentially, the Garner standards made it more difficult for defendants who use deadly force to justify their actions as reasonable. In Scott, the respondent claimed that Garner set forth three preconditions that must be met in order for the use of deadly force by the police to survive Fourth Amendment scrutiny: (1) the suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must have been necessary to prevent escape; and (3) the officer must have given the suspect some warning if feasible.*fn4 Scott, 127 S.Ct. at 1777.

 However, the Supreme Court emphasized in Scott that "Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force.' Garner was simply an application of the Fourth Amendment's 'reasonableness' test." Id; see also Willis v. Oakes, No. 06 Civ. 0015, 2007 U.S. Dist. LEXIS 44137, at  *12-13 (D. Va. June 19, 2007) (citing Scott). When evaluating the use of any type of force -- deadly or otherwise -- courts should apply the "objective reasonableness" standard of Graham v. Conner, 490 U.S. 386, 388 (1989). Id. at 1777-78. Under Graham:

 Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. . . . Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, 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 the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

 As noted above, deadly force is simply a type of excessive force. No separate legal standard applies to cases involving deadly force. Like any other excessive force claim, cases involving deadly or potentially deadly force should be evaluated under the Graham       reasonableness test. Scott, 127 S.Ct. at 1777-78. ("Although respondent's attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of 'reasonableness.').

Here, as in Scott, the Court has no need to decide as a matter of law whether the police used deadly force. Id. at 1778 ("Whether or not [Defendants'] actions constituted application of 'deadly force,' all that matters is whether [Defendants'] actions were reasonable.")

 Accordingly, the Court need only craft a charge which will help a jury decide whether the force used in this case was reasonable under all the circumstances. The Court will explain that, in conducting this analysis, the jury may consider the Graham factors, namely, the severity of the crime; whether Plaintiffs posed an immediate threat to the safety of the officers; and whether the Plaintiffs actively resisted arrest. Graham, 490 U.S. at 396. If appropriate, the Court may instruct the jury to consider additional factors as requested by the parties. The Court will advise the jury that the objective reasonableness inquiry is      fact-specific, so the jury may consider any other aspects of this case that inform the reasonableness analysis.

The Court will not instruct the jury as to the definition of deadly force or the specific circumstances under which deadly force is or is not reasonable. That said, both sides may present evidence as to the amount of force a police dog can exert. Plaintiffs may present evidence that the police dog in this case could have killed Plaintiffs. Defendants may present evidence that the dog in this case could not have -- or was highly unlikely to have -- killed Plaintiffs. The parties may then argue that it was reasonable or unreasonable to use DJ under the circumstances of this case. But the Court will not instruct the jury as to deadly force.

 Foot Notes:

*fn2 While the Second Circuit has not decided the question, several other circuits have held that a properly trained police dog cannot, as a matter of law, constitute deadly force. See, e.g., Dunnigan   v. Noble, 390 F.3d 486, 492 n. 8 (6th Cir. 2004) ("No federal appeals court has held a properly trained police dog is an instrument of deadly force."); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988)("[W]e find that the use of a properly trained police dog to apprehend a felony suspect does not carry with it a 'substantial risk of causing death or serious bodily harm [i.e. deadly force].'"); Kuha v. Minnetonka, 365 F.3d 590, 598 (8th Cir. 2004) ("[T]he use of a properly trained police dog in the course of apprehending a suspect does not constitute deadly force.").

 *fn4 Plaintiffs' proposed jury charge states that deadly force is reasonable only where (1) a police officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others, and (2) where there are no non-deadly alternatives. See Tennessee v. Garner, 471 U.S. 1, 3 (1985); Cowan v. Breen, 352 F.3d 756, 762 (2d Cir. 2003); Brower v. County of Inyo, 884 F.2d 1316, 1317-18 & n.1 (9th Cir. 1989).

Editor's Comment: The reader is encouraged to provide this information to their agency's Legal Advisor for clarification and understanding as it relates to their respective Constitutional and Statutory law as filtered through their respective agency Use of Force Policy.

Subject: In car video from pursuit/Shoot Out in Wharton County.

http://www.victoriaadvocate.com/wharton_county/story/352636-a352663-t32.html

The above link is the in car video from one of the officers involved in the chase which ended in a shoot out and Game Warden Justin Hurst being killed. The Jury found the defendant guilty of Capital Murder last week and gave him Death as punishment. The video goes out when a round from the AK-47 hits the camera. This all started from a stop where the defendant was going to receive a citation for shooting from the roadway.

No one can kill me without my consent… John 10:11,18

It is more blessed to give than to receive. …Act 20:35