Police Deadly Force Against Citizens Wielding Knives
by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: troy.nicks@lynchburgva.gov
Situations involving police use of deadly force are guaranteed to receive scrutiny, as they should. The sanctity afforded human life, the common finality of firearm use and the chaotic circumstances frequently involved make it difficult to render a measured assessment of such situations. When an officer shoots a person armed with a knife, it seems likely that the incident will be controversial.
Perhaps fueled by Hollywood and television scripts, many people seem to believe that police officers have (or should have) the ability to safely disarm a person armed with “only” a knife without shooting him or her. This is especially a common perception if the person is not charging the officer with the knife grasped in a classic upraised fist.
Many veteran officers, on the other hand, vividly recall a police training video widely used in past decades entitled “Surviving Edged Weapons”. [1] That video includes narratives from officers who survived knife attacks, the common theme being how sudden, violent and devastating the attacks were and how narrowly those officers survived. Another noteworthy scene shows a series of officers engaging with a staged scenario where the officer is instructed to investigate a “suspicious subject” slumped in a chair. This exercise demonstrates that if the officer approaches the subject closer than 21 feet, the officer will not have enough time to draw his firearm and fire effectively when the subject suddenly lunges and overwhelms the officer in a knife attack.
Unfortunately, that training video appears to have resulted in a generalized notion among some officers that a subject with a knife, positioned within 21 feet, is per se a deadly threat, and a firearm response is therefore justified. Courts, however, generally have declined to approve police shootings where it seems in hindsight that a person was shot by police merely for possessing a knife.
Such is the context in which a panel of the U.S. Court of Appeals for the Fourth Circuit last month handed down its decision in the case of Wilson v. Prince George’s County, Maryland [2}, based on the following facts as recited by the Court.
In October 2012, Damon Wilson went to the apartment of his former girlfriend, Mynia Johnson, to visit his daughters. After knocking and banging on the door resulted in no response, Wilson kicked in the door, entered the apartment and yelled and cursed at Johnson. He then left the apartment. Johnson followed him outside and an argument ensued during which Wilson slapped Johnson. Wilson then departed.
After arming himself with a pocket knife, Wilson started walking back to Johnson’s apartment. He later claimed that he intended to commit suicide in her presence. Johnson meanwhile had placed a 911 call reporting that Wilson had broken into her home and assaulted her. Officer Brendan Gill responded to the call, saw the evidence of Wilson’s forced entry and heard Johnson’s description of the event. As they left the apartment, Wilson was approaching, and Johnson pointed him out to the officer.
Officer Gill called out to Wilson some distance away, who responded by pulling an object out of his pocket which the officer was initially unable to identify. Wilson continued to close on the officer who drew his service weapon, commanded Wilson ten to fifteen times to “drop it”, and called for backup. Wilson ignored the officer’s commands and told the officer to leave so he “could do what he wanted to do”.
Wilson continued to walk toward the officer and began stabbing himself in the chest and cutting at his own throat. He later testified that those actions caused him to “stumble” forward about four steps. Wilson later claimed that at this point he was about 20 feet from the officer. The officer estimated the distance at 10 to 15 feet. Johnson, also present, stated Wilson and the officer were about eight feet apart.
Observing that Wilson after stabbing himself had continued to close on him, Officer Gill sensed that Wilson was “too close” and fired at center mass five times. There was no evidence of the officer giving a final warning nor any information regarding how quickly in succession the shots were fired. Wilson took multiple gunshot wounds to his torso and fell to the ground. Another officer arrived shortly thereafter and the two officers handcuffed Wilson and began CPR.
Wilson survived and filed a “1983” civil rights lawsuit [3], alleging excessive force in violation of his rights under the Fourth Amendment. The trial court granted a motion for summary judgment by the officer and county, ruling that Officer Gill’s use of deadly force was reasonable and that he was entitled to qualified immunity from suit.
Wilson appealed to the 4th Circuit Court of Appeals, and a panel of that Court began its review by noting that on appeal from summary judgment by a trial court the evidence must be construed in the light most favorable to the party against whom summary judgment was granted, in this case Wilson.
The Court then turned to the issue of qualified immunity, noting that even if a citizen’s constitutional rights have been violated by police, the officer involved is nevertheless protected from suit if the law defining the right was not “clearly established” at the time of the incident. As we will see, it is the second of those determinations that resulted in the outcome in this appeal.
To evaluate the first issue, whether the officer’s decision to fire his weapon violated the Fourth Amendment, the Court cited the following factors established by the U.S. Supreme Court in Graham v. Connor [4], regarding the standard of “objective reasonableness” in reviewing police use of force:
- The severity of the crime at issue,
- Whether the subject poses an immediate threat to the safety of the officers or others, and
- Whether the subject is actively resisting arrest or attempting to flee.
The Court also cited the U.S. Supreme Court’s holding in Tennessee v. Garner [5], that an officer may not use deadly force against a person who poses “no immediate threat to the officer and no threat to others”.
The Court then assessed the first Graham factor in the officer’s favor, noting Wilson’s forcible entry of Johnson’s apartment and his assault against her, as well as the fact that the officer had reliable information about those events when Wilson approached him. (Later in the opinion, the Court characterized Wilson’s crimes as misdemeanors – apparently determining that Wilson’s breaking and entering was not made with intent to commit any particular crime and thus would not constitute felony burglary under Maryland statutes. Those acts probably would not be a felony in Virginia either [6]).
The Court then evaluated the third Graham factor as being in Wilson’s favor, in that he was not attempting to “evade arrest” when the officer shot him. This seems a rather formulaic interpretation of events. True, the officer had not stated, “You’re under arrest”, but it would seem that an officer with a drawn weapon commanding a person numerous times to “drop it” could suffice as a functional equivalent of an arrest attempt, especially when the person disregards the commands and continues, knife in hand, to advance on the officer. It seems questionable that the Court did not at least “score” this factor as being neutral.
The remaining Graham factor, the threat involved, was pivotal in the Court’s determination of the excessive force issue. Call it the tiebreaker if you will. Simply summarized, the Court focused on the facts that Wilson had a “small” knife in his hand, that he never “pointed” the knife at anyone but himself, that he did not move suddenly, and that he had used the knife on himself. Based on that view of those facts, the Court concluded that Wilson had not threatened the officer or anyone else at the scene.
The clincher in characterizing the level of threat concerned the disputed facts regarding the distance separating Wilson and the officer when the shots were fired. On an appeal taken before trial, the reviewing court is required to adopt the version of facts most favorable to the non-moving party, in this case Wilson. Therefore, the Court’s analysis is based on a distance assumed to be 20 feet, Wilson’s version of events. All considered, the Court decided that the record was such that a jury could decide that Wilson was not an “immediate” threat when he was shot, and therefore that the officer’s use of deadly force was excessive and unreasonable.
Interestingly, the Court’s opinion does not mention any evidence regarding the respective fitness levels and physical attributes of Wilson and the officer. It would certainly seem conceivable that a person performing self-mutilation can turn homicidal in an instant and that a physically capable person can quickly lunge several yards. It’s surprising that evidence of Wilson’s physical capacities was not in the record; perhaps both sides evaluated those facts as being unremarkable.
Having ruled that Wilson was subjected to excessive force in violation of the Fourth Amendment, the Court next considered the second requirement for qualified immunity – that being whether the law regarding the violation was “clearly established” at the time of the incident in question.
On that issue, the Court found that its own precedents did not include any case containing specific facts that could have put Officer Gill on notice that his use of force was excessive. Previous 4th Circuit opinions disapproving police deadly force included cases involving a person who was in “mere possession” of a firearm [7] or who advanced menacingly with open hands toward officers [8]. In contrast, other 4th Circuit cases upheld deadly force against persons who made sudden movements toward a bulge in a pocket [9] or who used a knife to slash at an officer [10].
The Court then concluded that the circumstances confronting Officer Gill lay “somewhere between” the 4th Circuit’s previous cases either approving or disapproving deadly force. The Court further found that the decisions of the U.S. Supreme Court, the other federal Circuits and the Maryland appellate courts likewise lacked sufficiently analogous situations to provide clear legal guidance on the circumstances in this case
In assessing whether a subject is “threatening”, the Court appears to deem it relevant whether he or she “pointed” a firearm or knife at others. However, the factor of pointing a weapon or not may reflect different levels of threat. It seems fair to question the notion that a person who within previous minutes has committed violent acts against property and another person, is presently raving and slashing himself and is steadily advancing on an officer and disregarding voice commands, but who has not “pointed” a knife at others, is not threatening.
Furthermore, there remains the question – if not at 20 feet, at what diminishing distance would this Court have approved Officer Gill firing on Wilson? Fifteen feet? Six feet? Three feet? Arm’s length? Keep in mind the obvious aspect that Wilson would not have been shot if he had simply followed the officer’s commands to drop the knife.
The Court’s opinion concludes by holding that, even under the version of facts most favorable to Wilson, Officer Gill did not violate clearly established law and thus was entitled to qualified immunity. The claim based on a federal civil rights violation was dismissed and the case returned to the trial court for further proceedings to determine whether immunity would apply to violations of state law .
In another recent 4th Circuit case involving police Taser use against a mentally ill subject [11], the 4th Circuit similarly granted the officers involved qualified immunity but warned that immunity would not be available in the future under the same circumstances. The opinion discussed by this Article issues the same admonition by explicitly ruling that use of deadly force under the specific circumstances of this case constitutes excessive force in violation of the Fourth Amendment.
In light of this decision, Virginia law enforcement officials and trainers should heed the popular saying - “Here’s your sign….”
[2] U.S. App. LEXIS 16292 (June 18, 2018)
[3] Title 42, U.S. Code §1983
[4] 490 U.S. 386 (1989)
[5] 471 U.S. 1 (1985)
[6] Code of Virginia Title 18.2, §58 and related “home invasion” case law
[7] Cooper v. Sheehan, 735 F.3d 153 (4th Cir., 2013)
[8] Clem v. Corbeau, 284 F.3d 543 (4th Cir., 2002)
[8] Slattery v. Rizzo, 989 F.2d 213 (4th Cir., 1991)
[9] Anderson v. Russell, 247 F.3d 125 (4th Cir., 2001)
[10] Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir., 1998)
[11] Estate of Armstrong v. Village of Pinehurst, 810 F.3d 892 (4th Cir., 2016). See also this Bulletin, Vol. 3, No. 1, “Police Taser Use”