8th Amendment - Prohibits "Cruel and Unusual Punishment"- "wanton
and unnecessarily inflicted pain." The Eighth Amendment applies "
... only after the State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions." Ingraham
v. Wright, 430 U.S. 651, 671, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).
Amendment VIII, United States Constitution
Excessive Bail, Fines, Punishments
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
8th Amendment Standard:
1) The standard: " ... whether force was
applied in a good faith effort to maintain
or restore discipline or maliciously
and sadistically for the very purpose of
causing harm." Whitley
v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89
L.Ed.2d 251 (1986)
2) Questions to ask:
a) What was the need for the
b) How much force was used?
c) What is the extent of the
d) What was the perceived threat
by the jail personnel?
e) Were any efforts made to minimize
the use of force?
Cruel and Unusual Punishment Standard:
1) Non-Riot - the "cruel and unusual
punishment standard" is higher than
the "deliberate indifference"
standard. Cruel and unusual punishment will
be present only when an "unnecessary
and wanton infliction of pain,"
"obduracy and wantonness,"
and "actions taken in bad faith and for no
legitimate purpose". Whitley
v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89
L.Ed.2d 251 (1986).
a) All excessive force claims
under the 8th Amendment must show
malice, sadism, and intent
to cause harm. Hudson v. McMillian, 503
U.S. 1, 112 S.Ct. 995,
117 L.Ed.2d 156 (1992).
b) Shackling a quarrelsome inmate to a bed
for 72 hours may be
v. Vidor, 17 F.3d 857 (6th Cir. 1994)(per curiam).
c) There is no "significant injury"
requirement under the 8th Amendment.
Hudson v. McMillian
2) Riot - In a prison-riot context (use of force not usually
"punishment") the 8th Amendment
standard is the equivalent of the
substantive due process standard. Whitley
v. Albers, 475 U.S. 312, 106
S.Ct. 1078, 89 L.Ed.2d 251 (1986).
Hudson v. McMillian, 503 U.S. 1, 112
S.Ct. 995, 117 L.Ed.2d 156 (1992).
Not "Cruel and Unusual Punishment:"
1) The use of handcuffs with a black box in a
standard manner while
transporting a prisoner was not malicious
and sadistic under Hudson and
Whitley. Starbeck v.
Linn Co. Jail, 871 F.Supp. 1129 (N.D. Iowa 1994).
Cruel and Unusual Punishment:
1) Stun Gun - Using a stun gun on a jailee
after he had contentiously refused to
sweep his cell was cruel and unusual
as a matter of law. (Hickey v. Reeder,
12 F.3d 754, 759 (8th Cir. 1993)
2) "Mental torture" could constitute cruel and
unusual punishment. (Parsons v.
Board of Co. Commr's, 873
F.Supp. 542 (D.Kan. 1994)
Fourteenth Amendment Standard - the "due process clause"
deprivation of " ... life ..." without due process
Amendment XIV, United States Constitution
Privileges and Immunities; Due Process; Equal Protection;
Appointment of Representation; Disqualification of
Officers; Public Debt; Enforcement
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the laws. [emphasis added]
The 14th Amendment Standard - Whether official conduct "shocks the
conscience." Rochin v. California,
342 U.S. 165, 72 S.Ct. 205, 96 L.Ed.2d 183
1) When decisions are "necessarily made in haste,
under pressure, and
frequently without the luxury of a second
chance ... only a purpose to cause
harm ... will satisfy the element of
arbitrary conduct shocking to the
conscience, necessary for a due process
violation ..." County of Sacramento
v. Lewis, 523 U.S. 833, 118
S.Ct. 1708, 1711-12, 140 L.Ed.2d 1043 (1998);
Medeiros v. O'Connell, 150 F.3d
164 (2nd Cir. 1998); Schaefer v. Goch, 153
F.3d 793 (7th Cir. 1998).
2) When "deliberation" is possible, then "deliberate
indifference" may "shock the
conscience." Example: the
failure to provide adequate medical care to jail
The "due process" standard controls the use of force under certain
where the 4th (seizure of a free person) and the 8th (convicted and incarcerated person)
Amendments do not apply.
1) Non-seizure cases:
a) Unintended person:
(1) Claybrook v. Birchwell,
199 F.3d 350 (6th Cir. 2000) [very important to
this case to Fisher v. City of Memphis, 234 F.3d 312 (6th Cir.
a shootout, the plaintiff, unbeknownst to the officers, was in
the vehicle and was injured by a stray bullet.
(b) The Court found that
the officers "had no opportunity to ponder or
debate their reaction to the dangerous actions of the armed man."
(2) Schaefer v. Goch, 153 F.3d
793 (7th Cir. 1998)
(3) Medeiros v. O'Connell, 150
F.3d 164 (2nd Cir. 1998)
(4) Ansley v. Heinrich, 925
F.2d 1339 (11th Cir. 1991) -held that the
consequences of government action [cannot] form the basis
for a Fourth
(5) Rucker v. Hartford County,
946 F.2d 278 (4th Cir. 1991), cert. denied,
1097 (1992) - The Rucker Court held that a seizure under the
occurs only when "one is the intended object of a
restraint by an agent of the state. Relying on Brower, the
granted summary judgment to police officers where an
bystander, who was shot and killed by police officers while
to stop a felling criminal, was not the "intended object of a
restraint by the state." The undisputed evidence was that the
were firing at the vehicle being driven by the fleeing
and were unaware oft eh innocent bystander's presence.
(6) Landol-Rivera v. Cruz Cosme,
906 F.2d 791 (1st Cir. 1990) -
Landol-Rivera Court held that "a police officer's deliberate
decision to shoot at a car containing a robber and a hostage for
purpose of stopping the robber's flight does not result in the
wilful detention of the hostage the Fourth Amendment was designed
to govern." Since the hostage was "not the object of
the bullet that
struck him," the Court held that the hostage's "presence
in the car
arguably gave the police officers a more compelling need to stop
suspect than if there had been no hostage; the errant bullet did
these circumstances transform the police action into a seizure."
(b) The officer's seizure
was directed appropriately at the suspect, but
the officer inadvertently injures an innocent person. The innocent
person's injury or death is not a seizure that implicates the 4th
(7) Hicks v. Leake, 821 F.Supp.
419 (W.D.Va. 1992) - dismissed action
officer where the driver killed in the collision was not the object
of the chase.
(8) See, When an Innocent Bystander
Who is Injured by a Police Officer
Under § 1983, by Mark Albert Mesler II, University of
Law Review, Winter 1995, cite as 25 U.Mem.L.Rev. 781.
b) Unintended means:
(1) Lewis v. Sacramento,
523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043
2) Pre-conviction, but post-seizure:
a) Bell v. Wolfish, 441 U.S.
520, 99 S.Ct. 1861, 60 L.Ed.2d 417 (1979)
c. County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998):
1) A police officer does not violate substantive due
process by causing death
through deliberate or reckless indifference
to life in a high-speed automobile
chase aimed at apprehending a suspected
2) Holding - in such circumstances, only a purpose to cause harm
the legitimate object of the arrest
will satisfy the element of arbitrary conduct
shocking to the conscience, necessary
for a due process violation.
Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973), cert. denied,
414 U.S. 1033, 94
S.Ct. 462, 38 L.Ed.2d 324 (1973).
1) Four-part (14th Amendment) "substantive due
process" ("shocks the
conscience") analysis which considers:
a) The need for the use of force;
b) Relationship between that need and the amount
of force that was used;
c) The extent of the injuries inflicted; and
d) Whether the force applied was in good faith or
maliciously and sadistically
for the purpose of causing
Officer shot escaping pre-trial detainee. Court said that it was
a due process
clause claim and not a Fourth Amendment claim.
Court also ruled that the
shooting and killing of the pre-trial detainee did
not violate due process. Brothers
v. Klevenhagen, 28 F.3d 452 (5th Cir. 1994),
cert. denied, 513 U.S. 1044, 115
S.Ct. 639, 130 L.Ed.2d 545 (1994).
A pre-trial detainee's beating in the jail was governed by the 14th Amendment.
(Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993),
cert. denied, 509 U.S. 905,
113 S.Ct. 2998, 125 L.Ed.2d 691 (1993).
g. "Substantive due process" is based on the "liberty"
provided in the 14th
Amendment. The idea is that governmental action
are so offensive and so
unjustified that they violate fundamental rights of
freedom. Rochin v. California,
342 U.S. 165, 72 S.Ct. 205, 96 L.Ed.2d 183 (1952)
- In Rochin officers pumped
the stomach of a narcotics suspect to obtain incriminating
evidence - the court
said that this behavior by the officers "shocked
Substantive due process cannot be violated by mere negligence.
Fourth Amendment Standard
Amendment IV, United States Constitution
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
A "seizure" occurs when there is a " ... governmental termination
of freedom of
movement through means intentionally applied." Brower
v. County of Inyo, et al,
489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).
The Brower Court held that a "[v]iolation of the Fourth Amendment
intentional acquisition of physical control.
A seizure occurs even when an
unintended person or thing is the object of the detention
or taking, but the
detention or taking itself must be wilful. This
is implicit in the word ‘seizure,'
which can hardly be applied to an unknowing act ...
" Brower, 489 U.S., at 596,
109 S.Ct. 1378
"[T]he Fourth Amendment addresses ‘misuse of power,' not the accidental
of otherwise lawful conduct." Brower,
489 U.S., at 596, 109 S.Ct. 1378; Milstead
v. Kibler, 243 F.3d 157 (4th Cir. 2001).
Official's use of force - "Our Fourth Amendment jurisprudence has
recognized that the right to make an arrest or investigatory
carries with it the right to use some degree of physical
coercion or threat thereof
to effect it." Graham v. Conner,
490 U.S. 386, 396, 104 L.Ed.2d 443, 109 S.Ct.
" ... [T]he test of reasonableness under the Fourth Amendment is
not capable of
precise definition or mechanical application ..."
Graham, 490 U.S., at 396, citing
Bell v. Wolfish, 441 U.S. 520, at 559,
99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
Graham - the 4th Amendment analysis - "objectively reasonable"
1) Graham established the constitutional standard
for liability for unreasonable use
of force (deadly and non-deadly) during a Fourth
2) "Because the test of reasonableness under the Fourth Amendment
capable of precise definition or mechanical
application .. its proper application
requires careful attention to facts and circumstances
of each case ..."
Graham, 490 U.S., at 396.
3) The Graham analysis applies to all law enforcement excessive
force claims -
deadly or not - in the course of an arrest,
investigatory stop, or other "seizure" of
a free person.
4) The question is whether the officer's actions are "objective reasonable"
in light of
the facts and circumstances confronting them,
without regard to their underlying
intent or motivation.
The "reasonableness" test:
a) Reasonableness is determined by balancing the nature and
quality of the
intrusion with the countervailing governmental
b) Reasonableness analysis contemplates careful consideration of the facts
circumstances of the incident, including:
(1) The severity of the crime at issue,
(2) Whether the suspect poses an immediate threat to the
safety of officers and
(3) Whether the suspect is actively resisting arrest or
attempting to evade
arrest by flight.
c) Reasonableness is judged from the perspective of a reasonable officer
scene, rather than with the 20/20 vision of
hindsight. Graham, 490 U.S., at
d) Not every push or shove violates the 4th amendment.
e) "Allowance must be made for the fact that officers are often forced
split-second judgements - in circumstances
that are tense, uncertain, and
rapidly evolving." Graham, 490 U.S., at
(1) The reasonableness standard must make an
allowance for the fact that
police officers are often
forced to make:
(a) Split-second judgments
(b) In circumstances that are:
(2) Every objectively reasonable law enforcement officer
(a) There are inherent
dangers of the job of law enforcement.
(b) There are inherent limitations
of officers' abilities to assess and respond
Time - action beats reaction
ii) Limited Abilities
- during tense circumstances, officers have limited
and mental capabilities
iii) Limited Means
- officers do not have a reliable means to
instantaneously cease a person's threatening actions
iv) Limited Control
- "chance" plays a significant role in all human
endeavors, and even thought an officer's preparation, training, skill,
and planning can lessen the effects of chance, these effects cannot
be reliably eliminated
f) The officer's underlying intent or motive is irrelevant
(1) Even though the Graham analysis
does not care about the officer's motive, if
the officer is found to have
used "objectively unreasonable" force the door
may be opened to punitive damages.
The determination as to whether the
officer may be liable for punitive
damages lies in the officer's motive - evil
intent, maliciousness, willful
indifference. Racial, ethnic, gender, sexual
preference slurs and derogatory
statements could indicate discrimination
that could lead to the officer
being liable under other statutes.
(2) The U.S. S.Ct. noted that an officer's "subjective"
intent or motivation could
be relevant to the officer's
credibility. Graham, 490 U.S., fn. 12, pg. 399.
Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), cert. denied, 513
U.S. 1148, 115
S.Ct. 1097, 130 L.Ed.2d 1065 (1995) :
1) Probably the most important aspect of Chew
is its detailed analysis, and
narrowing, of Graham. Chew
restricts the Graham factors on several important
a) Chew states that the MOST
important of the Graham factors is "imminent
threat" to officers
(1) Chew (when
compared with Mendoza v. Block, 27 F.3d 1357 (9th Cir.
out the difference between a "residential neighborhood"
and a "scrap
yard." In that a "residential neighborhood" has a
innocent bystanders being injured than a close scrap yard.
(2) Chew pointed out the distinction
between a suspect being a threat to the
and one who picked up a pipe in a scrap yard to protect himself
from a law
enforcement canine. In other words, knowingly arming
against an officer vs. picking up a pipe to attempt to stop an
b) Chew distinguishes between "resisting
arrest" and "attempting to evade
seizure by flight.
The Chew Court opined that a suspect is a greater threat
while resisting arrest
as opposed to merely trying to escape – attempting to
evade seizure by flight.
c) Chew emphasizes that when analyzing the
"severity of crime at issue" an
officer cannot assume
the negative. Meaning, according to Chew, that if all
the officers know is that
the suspect has three (3) outstanding felony
warrants, and the officers
do not what the warrants are for, and the officers
would have had time to
check on the warrants, then the officers cannot
escalate their force based
solely on the knowledge that the suspect has the
The reason for this is that if a suspect had
outstanding warrants for
writing (felony level) bad checks, then this
knowledge would not allow
the officers to escalate their force. However, if a
suspect had outstanding
felony warrants for violence related crimes –
especially violence toward
officers – then the officers, armed with "this"
knowledge would be able
to escalate to a higher level of force.
d) Chew (when compared to Mendoza)
points out the importance of "tense,
uncertain, and rapidly
model is a graphical example - and it is NOT legal precedent.]
How can these five (5) factors be graphically demonstrated? By using
a 0-10 scale for each of the factors, and another for the officer's use
of force, the relationship between the factors and the officer's force
can be illustrated.
Threat to Officers/Others
Tense, Uncertain, Rapidly Evolv.
of the Crime(s) at Issue
to Evade by Flight
Officer’s Force Used:
of Force Officer Used
Under the 4th Amendment's "objective reasonableness" standard
officer does not have to be perfect - or choose the
least intrusive method
to apply force - officer need only be "objectively
1) Graham v. Conner, 490 U.S. 386,
109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)
2) United States v. Sokolow, 490 U.S.
1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)
3) Illinois v. Lafayette, 462 U.S. 640,
103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)
4) Tauke v. Stine, 120 F.3d 1363 (8th
5) Warren v. Las Vegas, 111 F.3d 139
(9th Cir. 1997)
6) Elliott v. Leavitt, 99 F.3d 640 (4th
7) Salim v. Proulx, 93 F.3d 86 (2nd Cir.
8) Wilson v. Meeks, 52 F.3d 1547 (10th
9) Schultz v. Long, 44 F.3d 643 (8th
10) Roy v. Lewiston, 42 F.3d 691 (1st Cir. 1994)
11) Schultz v. Long, 44 F.3d 643 (8th Cir. 1995)
12) Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994)
13) Menuel v. City of Atlanta, 25 F.3d 990 (11th Cir.
14) Bella v. Chamberlain, 24 F.3d 1251 (10 Cir. N.M.
15) Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)
16) Scott v. Hendrich, 994 F.2d 1338 (9th Cir. 1992)
17) Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993)
18) Krueger v. Fuhr, 991 F.2d 435 (8th Cir. 1993)
19) Collins v. Nagle, 892 F.2d 489 (6th Cir. 1989)
20) Dyer v. Sheldon, 829 F.Supp. 1134 (D.Neb. 1993)
21) Powell v. Fournet, 846 F.Supp. 1443 (D.Colo. 1994)
Officer's Pre-Seizure Conduct - Reasonableness is to be judged at the
moment of the use of force - things that occur before, or
after, the moment
of the use of force are irrelevant:
a. Officer's Pre-Seizure Conduct is Irrelevant:
1) Napier v. Town of Windham, 187
F.3d 177 (1st Cir. 1999) - "Absent
additional authority, we cannot
agree that the [officer's] pre-confrontation
actions should deprive their
later conduct in response to Napier's action of
2) Mettler v. Whitledge, 165 F.3d 1197 (8th Cir.
1999) - " ... no seizure occurred
before the shooting began. That
being so, we need not address whether the
deputies' [prior] conduct constituted
an unreasonable seizure."
3) Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996) -
An officer'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."
4) Roy v. Lewiston, 42 F.3d 691 (1st Cir. 1994) -
Officers are not required to
"keep their distance"
in the face of a man armed with knives
5) Menuel v. City of Atlanta, 25 F.3d 990 (11th Cir.
6) Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)
- " ... Plakas charged [the
police officer] with the
poker raised. It is from this point on that we judge
the reasonableness of
the use of deadly force ... We do not return to the
prior segments of the
event and, in light of hindsight, reconsider whether the
prior police decisions
7) Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993)
8) Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992)
- " ... pre-seizure [law
enforcement] conduct is
not subject to Fourth Amendment scrutiny."
9) Fraire v. Arlington, 957 F.2d 1268 (5th
10) Greenridge v. Ruffin, 927 F.2d 789 (4th Cir.
1991) - The events that occurred
before the officer opened
the car door and identified herself to the vehicle's
passengers are not probative
of the reasonableness of the officer's decision
to fire the shot - the
events are not relevant
11) Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988)
12) Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988)
13) James v. Chester, 852 F.Supp. 1288 (D.So.Carol.
14) Powell v. Fournet, 846 F.Supp. 1443 (D.Colo.
b. Officer's Pre-Seizure Conduct is Relevant:
1) Abraham v. Rasso, 183 F.3d 279
(3rd Cir. 1999)
2) Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997)
The Force-Recipient's State of Mind is Irrelevant:
a. Pena v. Leombruni, 200 F.3d 1031 (7th Cir.
b. Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996)
Facts Unknown to the Officer:
a. Milstead v. Kibler, 243 F.3d 157 (4th Cir.
2001). [Officer intentionally shoots -
but shoots the wrong person, but did so "reasonably".]
1) The Court held that the deputy's use of
deadly force against person who
emerged from residence, who he
understandably believed under
circumstances to be intruder,
but who was in fact the victim, was
reasonable, and did not violate
the victim's 4th Amendment rights.
2) In determining whether the officer's use of force was
justified under the 4th
Amendment, objective facts must
be filtered through the lens of the officer's
perceptions at the time of the
incident in question; this limits
second-guessing the reasonableness
of actions with the benefit of 20/20
hindsight, and limits the need
for decision-makers to sort through conflicting
versions of the "actual"
facts, and allows them to focus instead on what the
officer reasonably perceived.
b. McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994) - the reasonableness
officer's conduct where th officer shot a suspect
upon receiving a warning from
a third person that the suspect had a gun,
even though the suspect actually
had no weapon.
c. Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991) - the Court
held that the officer's
force was reasonable where an officer could
have had probable cause to believe
that a suspect posed a deadly threat even though
the suspect turned out to be
d. Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991) - The fact that
no weapon was
later found was not relevant to the officer's
reasonable belief that the subject
was reaching for a weapon.
Deadly Force - Deadly force may be used to effect a seizure, when
a. To protect officers or others from immediate danger
of death or serious physical
1) Wood v. City of Lakeland (FL), 203
F.3d 1288 (11th Cir. 2000) - a mentally
disturbed man with a sharp-edged
2) Pena v. Leombruni, 200 F.3d 1031 (7th Cir. 1999)
- a man acting strange -
with a concrete slab
3) Mettler v. Whitledge, 165 F.3d 1197 (8th Cir.
1999) - a man shot a police dog
4) Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th
Cir. 1998) - a man with a
5) Colston v. Barnhart, 130 F.3d 96 (5th Cir. 1997)
- during a minor traffic stop,
an unarmed man (the passenger)
knocked two (2) officers to the groung and
moved in the direction of a police
vehicle where a shotgun was located.
6) Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997)
- a man carrying a shotgun
while running from police officer
was perceived by the court as a "present
threat" rather than a "fleeing
7) Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996)
- a handcuffed, but armed,
8) Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996) -
a juvenile grabbed for officer's
9) Reynolds v. County of San Diego, 84 F.3d 1162
(9th Cir. 1996) - a man with
10) Wilson v. Meeks, 52 F.3d 1547 (10th Cir. 1995)
- a man with a handgun
11) Roy v. Lewiston, 42 F.3d 691 (1st Cir. 1994)
- intoxicated man with two (2)
b. To prevent the escape of a dangerous suspect - fleeing felon deadly
force - U.S.
Supreme Court Standard - Tennessee v. Garner,
471 U.S. 1, 85 L.Ed.2d 1, 105
S.Ct. 1694 (1985).
1) The Garner Court reasoned that the
state's interest in law enforcement does
not outweigh the unarmed, non-dangerous
suspect's interest in life.
Consequently, this dictate may
require officers to permit some suspects to
2) The Garner "Fleeing Felon Rule"
- "The use of deadly force to prevent the
escape of all felony suspects,
whatever the circumstances, is
It is not better that all felony suspects die
than that they escape. Where
the suspect poses no immediate threat to
the officer and no threat to
others, the harm resulting from failing to
apprehend him does not justify
the use of deadly force to do so. It is no
doubt unfortunate when a suspect
who is in sight escapes, but the fact that
the police arrive a little late
or are a little slower afoot does not always justify
killing the suspect. A police
officer may not seize an unarmed,
non-dangerous suspect by shooting
him dead." Garner, 105 S.Ct., at 1701.
3) Garner requirements - in order for an officer
(under Garner) to use deadly
force against a fleeing felon:
a) Deadly Force Defense Standard
- The suspect must threaten the officer
with a weapon
b) Fleeing Felon Standard - all three (3)
elements must be present
(1) the officer
must have probable cause to believe that the suspect
has committed a crime involving the infliction or threatened
infliction of serious physical harm;
(2) The use of deadly force
is NECESSARY to prevent the suspect's
(3) The officer must give some
WARNING of the imminent use of deadly
force - if feasible.
4) Garner progeny:
a) See generally:
(1) Scott v.
Clay County, TN, 205 F.3d 867 (6th Cir. 2000) - During a
pursuit, a fleeing motorist posed a danger with the vehicle. The
officer's bullet struck the passenger in fleeing motorist's vehicle.
(2) Forrett v. Richardson,
112 F.3d 416 (9th Cir. 1997) - A burglary
suspect shot a victim during the burglary. Then the burglary suspect
fled - while unarmed. The court found that " ... the suspect need
not be armed or pose an immediate threat to the officers or others at
the time of the shooting."
(3) Smith v. Freland,
954 F.2d 343 (6th Cir. 1992) - An officer shot a
fleeing motorist who posed a danger to officers and others with his
vehicle during the pursuit.
b) Failure to give a Garner warning:
(1) The plaintiff
argued that the officer violated the Garner standards by
failing to give a warning prior to using deadly force. The Court
that the officer testified that he gave a warning and that Garner
requires a warning only when feasible. The Court ruled that no
additional warning was required. Hill v. Jenkins, 620 F.Supp.
(2) The officer used the words
"halt police" rather than "halt or I'll shoot."
In a footnote the Court stated that Garner requires only "some
warning" that deadly force would be used. Pruitt v. Montgomery,
F.2d 1475 (11th Cir. 1985).
(3) In a shooting case - a police
officer who entered a dark hallway of a
private residence at 2:45 a.m., and who failed to give any indication
his identify was more than merely negligent and could be held liable in
civil rights actions for use of excessive force against shooting victim.
Yates v. City of Cleveland, 941 F.2d 444 (8th Cir. 1991).
c) The Court held that the city was liable
to the suspect for the officer's
of shotgun at the suspect's legs in an attempt to stop
suspect from fleeing
from alleged burglary site, pursuant to city's deadly
force policy, where
officer did not have probable cause to believe the
suspect posed physical
threat to himself or to others, or that suspect had
committed a crime
involving the infliction or threatened infliction of serious
Pruitt v. Montgomery, 771 F.2d 1475 (11th Cir. 1985).
d) Garner standard also applies to
self-defense (by officer). Reed v. Hoy,
909 F.2d 324, 329
(9th Cir. 1989).
e) A Fourth Amendment seizure for purposes
of Garner is not affected if the
missed the suspect who was later killed when struck by a
Cameron v. City of Pontiac, 623 F.Supp. 1238 (D.C.
f) The killing of a burglary suspect by a
trained police dog did not constitute
the use of deadly
force. The Court found that death by a police dog is an
extreme and unusual
aberration and that, in fact, the use of police dogs is
more likely to
result in an officer not having to use deadly force. Robinette
854 F.2d 909 (6th Cir. 1988).
c. Road Blocks can be Deadly Force - Brower v. County of Inyo,
et al, 489 U.S.
593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).
Deadly force includes police
pursuit tactics such as ambush road blocks.
d. State Statutes - Deadly Force:
1) Fitzgerald v. Patrick, 927 F.2d
1037 (8th Cir. 1991). In dismissing a §1983
claim for use of deadly force,
the Court held that the officers were entitled to
summary judgement where the use
of deadly force was objectively
reasonable under a state statute
authorizing the use of deadly force by peace
2) Ansley v. Heinrich, 925 F.2d 1339 (11th Cir. 1991).
The Ansley Court
concluded that whether deadly force
is reasonably necessary under state law
is an issue of fact for the jury to
determine. The Court assumed that officers
owed no duty to refrain from using deadly
force when such force is justified
under state statutes.
e. Departmental Regulations - Policy Violations:
1) Claybrook v. Birchwell, 199 F.3d
350 (6th Cir. 2000) - In a 14th Amendment
accidental shooting context -
"even if ... the actions of the [officer's] violated
departmental policy or were otherwise
negligent, no rational fact finder could
conclude ... that those peace
enforcement operatives acted with
conscience-shocking malice or
sadism towards the unintended shooting
2) Mettler v. Whitledge, 165 F.3d 1197 (8th Cir.
3) Warren v. Las Vegas, 111 F.3d 139 (9th Cir. 1997)
4) Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996)
5) Wilson v. Meeks, 52 F.3d 1547 (10th Cir. 1995)
6) Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994)
7) Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993)
8) Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992)
9) Smith v. Freland, 954 F.2d 343 (6th Cir. 1992)
10) Greenridge v. Ruffin, 927 F.2d 789 (4th Cir.
11) Murphy v. City of Minneapolis, 292 N.W.2d 751
a) State laws establish statutory
privilege to use deadly force as a defense
to common law battery,
but not to negligence.
b) Even where force is justified under a statute,
however, "negligence" can
be proven by showing
an officer violated a departmental regulation
governing the use
12) Bedley v. State, 189 Ga. App. 374 S.E.2d 841
(Ga. App. 1988). In a
criminal battery case, a defendant
officer was convicted of simple battery for
slapping a prisoner. A departmental
manual defining justification for force
was admissible into evidence.
f. Officer Putting Him/Herself in Dangerous Position:
1) Quezada v. County of Bernalillo,
944 F.2d 710 (10th Cir. 1991). An officer
may be held liable, under common
law negligence principles, for putting
himself in a situation which
requires him/her to use deadly force against an
armed, suicidal citizen:
a) Facts - A deputy sheriff stood
in an open area of a parking lot while trying
to "talk down"
a suicidal woman seated in her car with a loaded gun.
When the woman
raised the gun and took aim at the deputy, he shot and
b) Holding - The district court judge (in
a bench trial) concluded that the
deputy was negligent
and that his negligence was the sole cause of the
In affirming this portion of the district court's decision, the
10th Cir. Court
of Appeals reasoned that the deputy, by standing in the
open and disregarding
his own safety, "forced the deadly confrontation"
Officer Shooting at Motor Vehicle:
a. Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000) - Officer's
act of firing at a vehicle that was approaching
him in order stop the vehicle and
its passengers constituted "seizure"
of vehicle's passengers, and injured
passenger's resulting § 1983 action against
officer was properly analyzed under
the 4th Amendment, vehicle was the intended
target of the officer's intentionally
applied exertion of force.
a. Ingram v. City of Columbus, 185 F.3d 579, 597
(6th Cir.1999). Regardless of
whether the suspect's injuries left physical
marks or caused extensive physical
damage, he can still successfully allege that
officers used excessive force
b. Foster v. Metropolitan Airports Commission, 914 F.2d 1078 (8th
1) Facts - Plaintiff parked his car in a busy
airport loading zone and refused to
move his car after being ordered
to do so by an officer. As officers
attempted to arrest plaintiff,
he clung to the door of his car. He was
removed, handcuffed, and taken
inside the airport.
2) Decision - The Court held that plaintiff's claim that
he was pushed twice
against a wall does not give
rise to a constitutional claim of excessive force
where he sustained no injury.
3) Decision - The Court after concluding the officers were
justified in using force
to overcome plaintiff's resistance
went on to affirm the summary judgment
dismissing plaintiff's additional
claim that the officers "roughed him up" by
pushing him against a wall after
4) "Not every push or shove, even if it may later seem
unnecessary in the
peace of a judge's chambers,
violates the Fourth Amendment." Foster, at
c. Gray v. Spillman, 925 F.2d 90 (4th Cir. 1991). The mere fact
that a plaintiff did
not sustain a significant injury does not,
by itself, defeat an excessive force
d. Johnson v. Morris, 453 N.W.2d 31 (Minn. 1990). The insignificance
of an injury,
however, may be relevant to a judge's pretrial
summary judgment and qualified
immunity determinations. Where the facts giving
rise to the need for the use of
force are not in dispute, the lack of any injury
demonstrating that the force used
was disproportionate to the need enhances the
possibility a judge will find no
excessive force as a matter of law.
e. Ortega v. Schramm, 922 F.2d 684 (11th Cir. 1991). A deputy sheriff
tip from an "informant" who claimed
to have seen a human arm protruding from
the trunk of an automobile in plaintiff's filing
station. After hours of surveillance,
the deputy decided to conduct a search of the
premises. The Court held that
the deputy violated the Fourth Amendment's
proscription against unreasonable
force where he: (1) did not first identify
himself as a police officer before
entering the premises; (2) entered the station
by shooting the lock off the door
with a shotgun; (3) held plaintiff at gunpoint
while searching the premises; and
(4) marched the plaintiff at gunpoint from
the gas station.
f. Barlow v. Ground, 943 F.2d 1132 (9th Cir. 1991). The jury could
that an officer's use of pain compliance techniques
before a suspect posed any
immediate threat to the arresting officers
was excessive force.
10. Minimal Application of Force:
a. Bauer v. Norris, 713 F.2d 408 (8th Cir.
1983). "[T]he use of any force by
officers simply because a suspect is
argumentative, contentions or
vituperative is not to be condoned."
Bauer at 412, quoting Agee v. Hickman,
490 F.2d 210, 212 (8th Cir.) cert. denied,
417 U.S. 972 (1974).
b. United States v. Harrison, 671 F.2d 1159 (8th Cir. 1982).
applications of force may be viewed
as excessive in the absence of any need
Arrestee's Right of Self Defense:
a. An arrestee has the right to use reasonable force only in self-defense
an officer who is using excessive force
during a lawful arrest. State v. Wright,
310 Or. 430, 799 P.2d 642 (1990), aff'g,
100 Or. App. 22, 784 P.2d 445 (1989).
b. Striking a police officer who was using excessive force while
arrest another was only justified to
save the other from death or serious bodily
injury. The state had abolished the
right to resist an unlawful arrest, but
retained a limited right of self-defense
against excessive force amounting to a
threat of serious injury. Commonwealth
v. French, 396 Pa. Super. 436, 578
A.2d 1292 (1990).
12. Specific Weapons:
1) An inebriated arrestee resisted
and the officer hit him on the knee in
self-defense with a "power
chop" from a heavy baton. An instruction at the
onset of trial that the
arrest was lawful was not prejudicial and the court's
refusal to admit a videotape
of defendant's training in the use of the weapon
was at most harmless error
where there was other evidence that it was
v. Meager, 417 N.W.2d 807 (N.D. 1987).
1) An officer's blackjacking of
an inebriated, handcuffed arrestee in the
good-faith belief that such was
necessary to effect the arrest was properly
regarded as negligent under the
Torts Claims Act. Jackson v. North Carolina
Dept of Crime Control,
97 N.C.App. 425, 388 S.E.2d 770, cert. denied, 326
N.C. 596, 393 S.E.2d 878 (N.C.
2) An unwarranted blackjacking of an inmate occurred
in the course of duty
and respondeat superior was present.
Thomas v. Ohio Department of
Ohio App. 3rd 86, 548 N.E.2d 991 (Ohio App. 1988).
c. Brandishing of Firearms:
1) A state tort claim that an officer
displayed a weapon during an arrest was
not actionable since a display
of force is legal in Texas where no immediate
threat of use of the weapon occurred.
Hinojosa v. City of Terrell, Texas, 834
F.2d 1223 (5th Cir. 1988), superseded
by, 864 F.2d 401 (5th Cir. 1989), cert.
denied, 110 S.Ct. 80 (1989).
2) A plaintiff who was mistakenly arrested for selling
stolen goods made an
assault claim based on the fact
that drawn guns were brandished during the
arrest. The plaintiff's
claim failed since "the threatened use of force" was not
unless accompanied by "verbal threats" or other
v. District of Columbia, 412 A.2d 948 (D.C. 1980).
d. Chemical Agents:
1) In a police chief's use of mace
on a subject, it was found that the police
chief was personally entitled
to qualified immunity, but as the chief of police
of the city, the chief
enjoyed sufficient policy making authority to create
There were questions under the fourth amendment as to
the chief's reasonableness
of the use of the mace without warning and the
reasonableness of the
length and manner of the use of the mace. Lester v.
City of Rosedale,
Mississippi, 757 F.Supp. 741 (N.D.Miss. 1991).
2) A plaintiff who was resisting arrest, had to be
removed from his position on a
car trunk and was maced
to facilitate handcuffing. The plaintiff was maced
again when he resisted
entry into a police car. The Court said "If anything,
it was fortunate for plaintiff
[that] the officers used mace, rather than more
severe physical methods."
Jackson v. City of Baton Rouge, 286 So.2d 743
1) Kostrzewa v. City of Troy,
247 F.3d 633(6th Cir. 2001) - Even though the
cuffs were on the loosest
possible setting, overly tight application of
handcuffs on a nonviolent
detainee might be an excessive use of force, in
the absence of any indication
that detainee would resist or attempt to flee.
2) Martin v. Heideman, 106 F.3d 1308, 1312-13
(6th Cir.1997) - excessive force
claims can be maintained
for cuffing an individual's wrists too tightly.
3) Walton v. City of Southfield, 995 F.2d
1331, 1342 (6th Cir.1993) - excessive
force claims can be maintained
for cuffing an individual's wrists too tightly.
4) The use of handcuffs is discretionary, but unreasonable
and therefore the
use of the handcuffs precludes
immunity. The key issues are that Ospina
was not a threat under
the Graham analysis. The use of the handcuffs was
officer caused "excruciating pain" and "continuing
serious medical problems"
by the application of the handcuffs. Ospina v.
Department of Corrections,
State of Delaware, 769 F.Supp. 154 (D.Del.
5) A plaintiff's claim against an officer of reckless
and negligent handcuffing
was subject to the intentional
torts statute of limitations since the act
contact" and was an intentional battery - offensive
touching. Love v. City
of Port Clinton, 37 Ohio St.3d 98, 524 N.E.2d 166
6) Plaintiff states that the handcuffs were put on
in an abusive manner and that
she was physically injured
in the arrest. A witness stated that when the
policemen handcuffed Mrs.
Hansen he was rough and abusive to her person
and I (the witness) was
upset at the treatment she was receiving. The
plaintiff had bruises
on her wrist and under her upper arm and she
complained of pain in
her little finger and upper arm. The Court stated
"[v]iewing the facts
in the light most favorable to Hansen [the Plaintiff], the
officers used excess force
on Hansen by unreasonably injuring her wrist
and arm as they handcuffed
her. If Hansen is believed, the police officers'
actions were objectively
unreasonable in light of facts and circumstances
confronting them. Based
on the record, the district court improperly granted
summary judgment for the
officers." Hansen v. Black, 885 F.2d 642 (9th
f. Knives/Edged Weapons:
1) The decedent advanced toward the
officers with a machete that had a
24-inch blade, the decedent
raised the machete after ignoring warnings to
drop it, and the decedent
got within four to six feet of the officers before the
decedent was shot.
The court found as a matter of law that the use of
deadly force was reasonable.
Rhodes v. McDaniel, 945 F.2d 117 (6th Cir.