Porter v. Osborn, a Ninth Circuit case published today, addressed the standard to be applied to a due process claim arising out of an officer's shooting of a suspect during an emergency the officer allegedly helped to create. In Porter, a police inspection of a reported abandoned vehicle evolved into the officers pepper-spraying the driver of the vehicle; and then one of the officers shooting the driver five times when the driver allegedly drove toward one of the police cars. The whole scenario played out in the course of five minutes.
The court held that the family could state a due process claim for the driver's death only if they could prove the officers shocked the conscience by acting with a purpose to harm unrelated to legitimate law enforcement purposes. That is the standard that applies to police use of force where emerging circumstances require the officer to make snap judgments. The court emphasized that plaintiffs will be able to meet this demanding standard only in rare circumstances.