CLIENT ALERT MEMORANDUM
May 15, 2001
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
USE OF FORCE WARNING
Recently a Los Angels law firm sent a memo, apparently to all chiefs and sheriffs in the state, regarding the holding in the case of Deorle v. Rutherford 242 F3d 1119 (3/16/01). The receipt of this document precipitated a number of clients calling about what appears, from that memo, to be a significant change in the law. Because of those concerns we are generating this Client Alert Memo.
The case involves a distraught individual who had become extremely upset after receiving negative medical information. The court pointed out that “Deorle, though verbally intimidating, was physically compliant and followed all of the officer’s instructions.” At one point he was “brandishing a hatchet at a police officer (however) he threw the hatchet away … when told to put it down.”
It is also true that at one point Deorle was “carrying an unloaded plastic crossbow in one hand … ” The officer testified, however, that when he told Deorle to put down the crossbow, he did so. Thereafter, having already “discarded the crossbow,” he started walking toward the deputy. The deputy’s own testimony was that Deorle was walking in a steady gait and not running at him. He further testified that he fired his “beanbag” shotgun “as Deorle was walking toward him at a steady gait, and without any weapons.” (Emphasis added).
The court states that it is aware of “split second” decisions which officers must make, “however, the situation here was far from that of a lone police officer suddenly confronted by a dangerous armed felon threatening immediate violence.” There were between eight and thirteen officers present at the scene and Officer Rutherford had been there for more than thirty minutes before he used his shotgun .
The officer testified that he waited until Deorle reached a certain point as he was approaching the officer and then, “without a command to stop or a warning that force would be employed, he pulled the trigger.” It is at this point that the court states that officers should provide warnings, where possible, even if the force used is less than deadly, but which carries a “significant risk of serious injury.” Officer Rutherford himself admitted that the cloth-cased shot was potentially lethal at thirty feet and could be lethal at distances of up to fifty feet. “The force supplied through use of the cloth-cased shot can kill a person if it strikes his head or the left side of his chest at a range of less than fifty feet.” The court distinguished other uses of force, such as “the use of pepper spray,” or “a painful compliance hold,” or “using Orcutt Police Nonchakus,” or “wrist and arm twisting and pressure point holds,” from the effect of the cloth-cased shot hitting a person.
Based upon the specific facts in this case, as well the nature of the force used, the Court of Appeal ruled that the matter needed to go back for trial and should not have been decided by summary judgment at the trial court level. “…(W)e conclude that, for purposes of summary judgment, Rutherford’s use of force was excessive and the defense of qualified immunity is unavailing.” “The degree of force was clearly in excess of the governmental interest at stake, and was used in circumstances that did not justify the failure to warn.”
The court’s determination, that a police officer should issue a warning prior to using force which could result in substantial injury, is always qualified by the phrase, “if feasible.” The court did not say that in all instances officers must first warn before using force. In fact, the obligation to warn prior to using deadly force is also qualified by that which is feasible under the circumstances confronting the officer at that particular time.
As always we urge that before you take any legal action you confer with your designated legal advisor. If you wish to discuss the comments set forth above, please feel free to contact Martin Mayer at (714) 446-1400 or MJM@Jones-Mayer.com.
[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]
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