For good reason, much of the current conversation about law enforcement reform has focused on how police respond to individuals experiencing mental health crises. NPR reports that, since 2015, nearly a quarter of all people killed by police officers in the United States have had a known mental illness. https://www.npr.org/2020/09/18/913229469/mental-health-and-police-violence-how-crisis-intervention-teams-are-failing.
Under federal law, apprehension by deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995) (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)). Whether the use of deadly force is reasonable turns on the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively fleeing or resisting arrest. See Wallace v. City of Alexander, 843 F.3d 763, 768 (8th Cir. 2016) (citing Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012)).
“An officer may not use deadly force against a fleeing suspect unless the suspect poses an immediate and significant threat of serious injury or death to the officer or to bystanders.” Thompson v. Murray, 800 F.3d 979, 983 (8th Cir. 2015) (citing Capps v. Olson, 780 F.3d 879, 886 (8th Cir. 2015)). As explained by the United States Supreme Court:
It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officers and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
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Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Garner, 471 U.S. at 11-12.
The intrusiveness of a seizure by deadly force is unmatched. Ludwig, 54 F.3d at 471 (citing Garner, 471 U.S. at 9.) When a person seized is not a “suspect,” has committed no crime when the police approach, and is provoked by police escalation of the situation, the importance of the governmental interests alleged to justify the intrusion is necessarily diminished. Id.
In Ludwig v. Anderson, the Eight Circuit, while noting that police department guidelines and policies do not create a constitutional right, held that police department policies regarding mental health crises response are relevant to the analysis of constitutionally excessive force. In Ludwig, the court noted that the individual’s (Ludwig’s) emotional disturbance was material to the reasonableness of the defendant officers’ actions, for three reasons: 1) Ludwig was admittedly emotional disturbed; 2) the defendant officers had been trained in the detection and handling of emotionally disturbed persons; and 3) standard police procedure regarding emotionally disturbed persons differs greatly from that regarding emotionally stable persons. Ludwig, 54 F.3d at 472.
Although Ludwig - along with other cases across the country addressing the contours of reasonable force in the context of mental health crisis response - has been on the books for decades, the public conversation about mental health and policing in the United States is just now gaining steam. While more and more law enforcement agencies are adjusting their policies to address mental health crises calls in more appropriate ways (such as summoning mental health professionals to secured scenes), there is still significant work to be done.
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