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Use-of-Force Legal Analysis

1. 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).

 a. 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 force?
         b)   How much force was used?
         c)   What is the extent of the injuries inflicted?
         d)   What was the perceived threat by the jail personnel?
         e)   Were any efforts made to minimize the use of force?

 b. 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   
               actionable. Williams 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 classified as
         "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).

 c. 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).

 d. 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)

2. Fourteenth Amendment Standard - the "due process clause" prohibits
   deprivation of " ... life ..." without due process of law:

 a. 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
     (1952).
     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
         detainees.

 b. The "due process" standard controls the use of force under certain conditions
     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
                 compare this case to Fisher v. City of Memphis, 234 F.3d 312 (6th Cir.
                 2000)]:
                 (a) During 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
                 "unintended consequences of government action [cannot] form the basis
                 for a Fourth Amendment violation.

             (5) Rucker v. Hartford County, 946 F.2d 278 (4th Cir. 1991), cert. denied,
                 502 U.S. 1097 (1992) - The Rucker Court held that a seizure under the
                 Fourth Amendment occurs only when "one is the intended object of a
                 physical restraint by an agent of the state. Relying on Brower, the
                 Rucker Court granted summary judgment to police officers where an
                 innocent bystander, who was shot and killed by police officers while
                 attempting to stop a felling criminal, was not the "intended object of a
                 physical restraint by the state."  The undisputed evidence was that the
                 police officers were firing at the vehicle being driven by the fleeing
                 criminal, and were unaware oft eh innocent bystander's presence.

             (6) Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir. 1990) -
                 (a) The Landol-Rivera Court held that "a police officer's deliberate
                       decision to shoot at a car containing a robber and a hostage for the
                       purpose of stopping the robber's flight does not result in the sort of
                       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 the
                       suspect than if there had been no hostage; the errant bullet did not in
                       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
                       Amendment.

             (7) Hicks v. Leake, 821 F.Supp. 419 (W.D.Va. 1992) - dismissed action
                 against 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
                 Can Recover Under § 1983, by Mark Albert Mesler II, University of
                 Memphis 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
                 (1998)

     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 offender.

     2) Holding - in such circumstances, only a purpose to cause harm unrelated to
         the legitimate object of the arrest will satisfy the element of arbitrary conduct
         shocking to the conscience, necessary for a due process violation.

 d. 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 harm.

 e. 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).

 f. 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 the conscience."

 h. Substantive due process cannot be violated by mere negligence.

3. Fourth Amendment Standard

 a. 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).

 b. The Brower Court held that a "[v]iolation of the Fourth Amendment requires an
     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

 c. "[T]he Fourth Amendment addresses ‘misuse of power,' not the accidental effects
     of otherwise lawful conduct." Brower, 489 U.S., at 596, 109 S.Ct. 1378; Milstead
     v. Kibler, 243 F.3d 157 (4th Cir. 2001).

 d. Official's use of force - "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."  Graham v. Conner, 490 U.S. 386, 396, 104 L.Ed.2d 443, 109 S.Ct.
     1865 (1989).

 e. " ... [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).

 f. Graham - the 4th Amendment analysis - "objectively reasonable" force:
   1) Graham established the constitutional standard for liability for unreasonable use
       of force (deadly and non-deadly) during a Fourth Amendment seizure.

   2)  "Because the test of reasonableness under the Fourth Amendment is not
       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.

5) The "reasonableness" test:
   a) Reasonableness is determined by balancing the nature and quality of the
       intrusion with the countervailing governmental interests.

   b) Reasonableness analysis contemplates careful consideration of the facts and
       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
             others,

       (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 on the
       scene, rather than with the 20/20 vision of hindsight. Graham, 490 U.S., at
       396-97.

   d) Not every push or shove violates the 4th amendment.

   e) "Allowance must be made for the fact that officers are often forced to make
       split-second judgements - in circumstances that are tense, uncertain, and
       rapidly evolving." Graham, 490 U.S., at 396.
       (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:
                 i) tense,
                 ii) uncertain, and
                 iii) rapidly evolving

       (2) Every objectively reasonable law enforcement officer knows:
             (a) There are inherent dangers of the job of law enforcement.

             (b) There are inherent limitations of officers' abilities to assess and respond
                 to perceived threats:
                 i) Limited Time - action beats reaction

                 ii) Limited Abilities - during tense circumstances, officers have limited                                            __physical 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.

 g. 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
         issues.
         a) Chew states that the MOST important of the Graham factors is "imminent
             threat" to officers and/or others.
             (1) Chew (when compared with Mendoza v. Block, 27 F.3d 1357 (9th Cir.
                 1994) pointed out the difference between a "residential neighborhood"
                 and a "scrap yard."  In that a "residential neighborhood" has a greater
                 chance of innocent bystanders being injured than a close scrap yard.

             (2) Chew pointed out the distinction between a suspect being a threat to the
                 officer and one who picked up a pipe in a scrap yard to protect himself
                 from a law enforcement canine. In other words, knowingly arming
                 himself against an officer vs. picking up a pipe to attempt to stop an
                 attacking dog.

         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
             outstanding warrants. 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 evolving" incident.

[This 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.

 h. Under the 4th Amendment's "objective reasonableness" standard - an
     officer does not have to be perfect - or choose the least intrusive method
     to apply force - officer need only be "objectively reasonable"
     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 Cir. 1997)
     5)  Warren v. Las Vegas, 111 F.3d 139 (9th Cir. 1997)
     6)  Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996)
     7)  Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996)
     8)  Wilson v. Meeks, 52 F.3d 1547 (10th Cir. 1995)
     9)  Schultz v. Long, 44 F.3d 643 (8th Cir. 1995)
   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. 1994)
   14) Bella v. Chamberlain, 24 F.3d 1251 (10 Cir. N.M. 1994)
   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)

4. 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
           its reasonableness."

       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. 1994)

       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 were correct."

       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 Cir. 1992)

       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. 1994)

       14) Powell v. Fournet, 846 F.Supp. 1443 (D.Colo. 1994)

   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)

5. The Force-Recipient's State of Mind is Irrelevant:
   a. Pena v. Leombruni, 200 F.3d 1031 (7th Cir. 1999)

   b. Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996)

6. 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 of an
       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
       unarmed.

   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.

7. Deadly Force - Deadly force may be used to effect a seizure, when
   necessary:
   a. To protect officers or others from immediate danger of death or serious physical
       injury:
       1) Wood v. City of Lakeland (FL), 203 F.3d 1288 (11th Cir. 2000) - a mentally
           disturbed man with a sharp-edged box cutter.

       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
           knife

       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 person"

       7) Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996) - a handcuffed, but armed,
           suspect

       8) Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996) - a juvenile grabbed for officer's
           gun

       9) Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996) - a man with
           a knife

       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)
             steak knives

   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
           escape.

       2) The Garner "Fleeing Felon Rule" - "The use of deadly force to prevent the
           escape of all felony suspects, whatever the circumstances, is
           constitutionally unreasonable. 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 OR

           b) Fleeing Felon Standard - all three (3) elements must be present
               simultaneously:
               (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
                     escape; AND

               (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 to
                     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 noted
                     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. 272
                     (N.D.Ill. 1985).

               (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, 771
                     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 of
                     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
               intentional firing 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
               physical harm. 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
               officer's shot missed the suspect who was later killed when struck by a
               moving vehicle.  Cameron v. City of Pontiac, 623 F.Supp. 1238 (D.C.
               Mich. 1985).

           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
               v. Barnes, 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
           officers.

       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
           victim." Claybrook, at 360.

       2) Mettler v. Whitledge, 165 F.3d 1197 (8th Cir. 1999)

       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. 1991)

       11) Murphy v. City of Minneapolis, 292 N.W.2d 751 (Minn. 1990).
           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 of force.

       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
               mortally wounded her.

           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
               woman's death.  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"
               which resulted.

8. Officer Shooting at Motor Vehicle:

   a. Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000) - Officer's intentional
       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.

9. Uninjured Plaintiffs:
   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
       against him.

   b. Foster v. Metropolitan Airports Commission, 914 F.2d 1078 (8th Cir. 1990):
       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 his arrest.

       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
           1982.

   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
       claim.

   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 received a
       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 properly find
       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). Seemingly minimal
         applications of force may be viewed as excessive in the absence of any need
         for force.

11. Arrestee's Right of Self Defense:
     a. An arrestee has the right to use reasonable force only in self-defense against
         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 attempting to
         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:
     a. Batons:
         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
             unauthorized. Fronk v. Meager, 417 N.W.2d 807 (N.D. 1987).

     b. Blackjacks:
         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. 1990).

         2) An unwarranted blackjacking of an inmate occurred in the course of duty
           and respondeat superior was present. Thomas v. Ohio Department of
           Rehabilitation, 40 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
           "clearly excessive" unless accompanied by "verbal threats" or other
           mistreatment.  Jackson 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
             municipal liability.  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
             (La.Ct.App. 1973).

     e. Handcuffs:
         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
             discretionary.  The 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.
             1991).

         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
             involved "intentional contact" and was an intentional battery - offensive
             touching. Love v. City of Port Clinton, 37 Ohio St.3d 98, 524 N.E.2d 166
             (1988).

         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
             Cir. 1989).

     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.
             1991).