When May Officers Use Deadly Force?

Recent well-publicized incidents have led to questions about when a law enforcement officer may use deadly force to seize a fleeing suspect. The short answer is that the Constitution permits an officer to use deadly force when he or she has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or to others. Because officers must make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving,” courts evaluate the reasonableness of an officer’s determination from the perspective of a reasonable officer on the scene and without the benefit of hindsight. Graham v. Connor, 490 U.S. 386, 397 (1989). The Constitution “does not require police to gamble with their lives in the face of a serious threat of harm.” Elliott v. Leavitt, 99 F.3d 640, 641 (4th Cir. 1996).

Factors critical to evaluating the reasonableness of an officer’s use of force to effectuate a seizure include: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by fleeing. Graham, 490 U.S. at 396. An officer’s subjective intent or motivation is not relevant to the inquiry, nor is the reasonableness of the officer’s actions in creating the dangerous situation. Waterman v. Batton, 393 F.3d 471, 477 (4th Cir. 2005)

The short answer seldom provides a definitive assessment of whether an officer’s use of deadly force in a particular circumstance violated a suspect’s constitutional rights. Even so, there are a few bright-line principles that can be applied to any such inquiry.

• Officers may not use deadly force to apprehend a fleeing suspect who poses no threat. See Tennessee v. Garner, 471 U.S. 1 (1985) (holding that “[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead” and striking down as unconstitutional a Tennessee statute that authorized the use of deadly force against fleeing suspects without regard to whether they were armed or dangerous).

• A suspect may not be deemed dangerous merely because he or she has a weapon. See Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013) (explaining that an officer does not “possess the unfettered authority to shoot a member of the public simply because that person is carrying a weapon. Instead deadly force may only be used by a police officer when, based on a reasonable assessment, the officer or another person is threatened with the weapon.”); Hensley v. Price, 876 F.3d 573, 583 (4th Cir. 2017) (finding that a jury could reasonably conclude that because the suspect never raised the gun he carried toward the officers and never threatened them, the officers shot the suspect merely because he held a firearm, which would violate the Fourth Amendment).

• A suspect who flees arrest in a motor vehicle may, depending on the facts, pose a grave safety risk that authorizes the use of deadly force. Courts have found the use of deadly force justified, for example, when the fleeing motorist leads officers on a high-speed chase involving high speeds and reckless driving that poses a danger to other motorists. See Plumhoff v. Rickard, 572 U.S. 765 (2014) (police acted reasonably in firing shots toward the suspect’s car, killing him, as he fled from officers after leading them on a high-speed chase while driving more than 100 mph for more than five minutes, passing more than two dozen other vehicles, colliding with a police car, and pushing down on the accelerator when the front bumper of his car was against a police cruiser before putting the car in reverse in an attempt to escape); Scott v. Harris, 550 U.S. 372 (2007) (officer acted reasonably in ramming his bumper into suspect’s vehicle to terminate high-speed chase that lasted for six minutes over ten miles and during which the suspect’s car hit a police car); Smith v. Frelund, 954 F.2d 343 (6th Cir. 1992) (officer acted reasonably in shooting at suspect’s car, killing the suspect, following a high-speed chase and the suspect’s ramming of the officer’s car, as suspect escaped officer’s trapping of the suspect’s car at the end of a street).

• The threat to the officer or others must be immediate to justify the use of deadly force. Once the threat abates, so does the authorization to use deadly force. See Williams v. Strickland, 917 F.3d 763 (4th Cir. 2019) (concluding that if officers started or continued to fire on the plaintiff as he was attempting to flee in his car after they were no longer in the trajectory of the car, they violated the suspect’s right to be free from excessive force); see also Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005) (officers did not violate the Fourth Amendment when they shot the driver of a car as he accelerated toward them following a high-speed chase during which the driver had reportedly tried to run an officer off the road; same officers violated the Fourth Amendment to the extent they continued to use deadly force once the car had driven by them such that it was no longer reasonable for them to believe that the car was about to run them or their fellow officers over.) Force justified when an encounter begins “is not justified even second later” if the danger that justified the initial use of force has been eliminated. Waterman, 393 F.3d at 481. See also Abraham v. Raso,183 F.3d 279, 294 (3d Cir.1999) (finding issue of fact regarding whether officer was justified in firing on vehicle from side after stepping out of the way to avoid being run over, and explaining that “[a] passing risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect”)

The rules stated above have been articulated by courts in the context of determining whether officers may be liable for damages resulting from alleged constitutional violations. The issue before these appellate courts is two-fold. First, taken in the light most favorable to the party asserting the injury, do the facts show that the officer’s conduct violated a constitutional right? Second, if so, did the law at the time the officer acted clearly establish that his or her conduct would violate the Constitution? This determination is related to, but not the same as, the one a prosecutor must make in deciding whether an officer has committed a crime by using deadly force against a suspect. In determining whether to pursue criminal charges against an officer, a prosecutor must first consider the lawfulness of the officer’s conduct, but also may consider other relevant factors including the officer’s intent and the State’s ability to prove its case beyond a reasonable doubt.

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