By Tamara Bogosian
Best Best & Krieger LLP

A famous author once wrote: “Hindsight is not only clearer than perception-in-the-moment but also unfair to those who actually lived through the moment.”

The U.S. Supreme Court made clear in the 1989 landmark ruling of Graham v. Connor that hindsight was not the way to decide whether a law enforcement officer’s actions were reasonable when using deadly force. Instead, the decision must be judged through the eyes of a reasonable officer on the scene. The nation’s highest court recognized that officers are often faced with rapidly evolving situations where they would be required to make “split-second” decisions,  thus finding that hindsight was not appropriate.

While the Graham rule remains the law, the Ninth Circuit Court of Appeals seems to have moved closer to a “Monday morning quarterbacking” analysis in use of force cases. In Hayes v. County of San Diego, the court held that officers are required to perform an additional level of review before using deadly force.

While scrutinizing officer actions is necessary, particularly when using deadly force, such scrutiny should be fair and objective. But when they do, should they be required to predict how the call is going to evolve or if it will end with the use of deadly force? Although officers continually receive training to deal with emotionally disturbed or suicidal persons and to de-escalate these situations, no amount of training or experience enables them to foresee what will happen and whether deadly force will be required. We rely on the courts to ensure the rules applied to reviewing use of force claims are both consistent and reasonable under the Graham principles. But now, with the Hayes decision, everyone from the subject’s family to the lawyers to the courts will be scrutinizing not only what officers did at the time of the shooting, but what they did (or did not do) before force was used. It marks a dramatic shift in the analysis of use of force, one that agencies should be aware of and take steps to prepare for the heightened scrutiny.

In Hayes v. County of San Diego, the Ninth Circuit ruled that officers can be held liable for negligence in pre-shooting tactical conduct. This ruling stemmed from an argument between Shane Hayes and his girlfriend, Geri Neill, which caused a neighbor to call the sheriff’s department. When Deputy Michael King arrived, Neill told the deputy she and Hayes had been arguing about his attempt that night to commit suicide by inhaling exhaust fumes from his car. She denied any physical confrontation between them and told the deputy she was concerned Hayes would harm himself since he had done so before. She also told the deputy there were no guns in the house. Neill did not tell the deputy that Hayes might be armed with a knife inside the residence.

Deputy King did not ask Neill about Hayes’ previous suicide attempts and was unaware Hayes had previously stabbed himself with a knife. The deputy did not know if Hayes was under the influence of alcohol or drugs.

Deputy King told a second deputy who arrived that there was a suicidal person inside the residence. Concerned that Hayes might harm himself, the deputies entered the residence to check on his welfare. Prior to entering, they did not check to see if there were previous calls regarding Hayes and were unaware Hayes had attempted suicide with a knife four months earlier.

The deputies entered, saw Hayes with his right hand behind his back and ordered Hayes to show his hands. Hayes raised both hands. Deputies observed a large knife pointed tip down in Hayes’ right hand. Deputy King, believing that Hayes was a threat to officer safety, immediately drew his gun and fired at Hayes. Neither deputy ordered Hayes to stop. Neill witnessed the shooting and later testified Hayes was walking towards the deputies with a “clueless expression” and with the knife raised at the time of the shooting, but was not “charging” at them. She also testified that just before the shooting Hayes said, “You want to take me to jail or you want to take me to prison, go ahead.”

The court found the deputies’ use of deadly force was not objectively reasonable. The court pointed out that Hayes had committed no crime nor did he actively resist or attempt to evade arrest. Rather, Hayes complied with the deputies’ orders when he raised the knife and posed no clear threat at the time he was shot. The court highlighted that just because a suspect is armed with a weapon, the use of deadly force is not automatically authorized. The court also noted that the deputies did not warn Hayes before they shot him.

Law enforcement officers have no doubt heard the phrase “totality of the circumstances” in the same sentence as “use of force.” The phrase means that any use-of -force decision, including deadly force, must take into consideration all of the circumstances surrounding each incident. Courts and juries will consider the following Graham factors to determine whether an officer’s use of force was reasonable:

(1) the severity of the crime at issue;

(2) whether the suspect poses an immediate threat to the safety of officers or others (most important factor);

(3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight;

(4) the level or type of force used (firearm, Taser, pepper spray, etc.);

(5) the availability of less severe alternatives; and

(6) the suspect’s mental and emotional state.

So where do things stand after the  Hayes ruling? In the Ninth Circuit, courts will continue to consider the “totality of the circumstances.” Now, however, they will also review officers’ actions or inactions prior to the use of force in determining whether the use of force was justified. Law enforcement officials should be aware of this additional level of scrutiny, particularly regarding a call involving an emotionally disturbed or suicidal person. In those cases, officers will now be expected, as time and circumstances permit, to conduct a thorough investigation about the subject before approaching him or her. Among other things, officers should obtain as much information as practicable from family members, neighbors, and witnesses, and review as many relevant records about the subject, including previous suicidal tendencies, whether weapons were involved, their current access to weapons and whether the subject used alcohol or drugs prior to the response. Officers should follow their agency’s guidelines regarding if and when to provide a subject with a warning before using deadly force, including whether such warnings are even possible.

While we are accustomed to scrutinizing officers’ actions at the time deadly force is used, lower courts, policy makers and law enforcement officers are now left to wonder how much of an officer’s pre-shooting conduct courts should analyze and how far back they should rewind the tape.