Government Liability Update

Use of Lethal Force on Mentally Ill Man Who Pointed Replica Firearm at Police Was Reasonable

In Estate of Strickland v. Nevada County, published May 31, 2023, the 9th Circuit Court of Appeals affirmed a district court order dismissing a lawsuit at the pleading stage.  The plaintiffs' decedent had been arrested by the county sheriff's department multiple times.  While incarcerated, he was diagnosed with mental illness.  Two days after his most most recent incarceration ended, police received reports of a man walking on a residential road  with what appeared to be a shotgun slung over his shoulder.  City police officers and count sheriff's deputies arrived on the scene. The decedent was carrying a black plastic airsoft rifle with an orange tip, pointed at the ground.  The officers and deputies recognized the decedent, and knew he was homeless, had mental health issues, and that he had been released from custody days before.  They would have known the decedent was likely suffering from a mental health episode and would not likely respond to their commands in a normal or expected manner.  The officers surrounded the decedent with guns drawn, and yelled to him to drop the gun.  The decedent said, "It's a BB gun."  He slapped the gun with his hand, making a noise that sounded more like plastic than metal.  The officers continued to yell orders to drop the gun.  They told the decedent, "We don't know that's a fake gun."  When the decedent pointed to the orange tip, the officers responded that he could have painted that."  The decedent said, "I'm not doing nothing wrong."  The officers did not contact their supervisors, request assistance from other officers with crisis training, or attempt to bring a professional negotiator, crisis de-escalator, or mental health provider to the scene.   Instead, officers approached the decedent while the others covered him.  The decedent dropped to his knees, and then began pointing the gun at the approaching officers, and at other times at the sky.  An officer deployed a taser, but it did not attach.  After the decedent again lowered the barrel at the officers, the approaching officers shot him several times.  He passed away.  His survivors and estate sued the officers, agencies, and entities under 42 U.S.C. section 1983 and state law for use of excessive force, and alleged deliberate disregard of the decedent's mental health needs.  The district court dismissed the case under FRCP 12(b)(6).

The appellate court concluded that the use of force was reasonable.  While the bulk of the Graham v. Connor factors for analyzing use of force favored the decedent (including the decedent's known mental health issues, and the officers' lack of effort to deescalate the situation), the most important factor is whether the suspect posed an immediate threat under an objective standard.  When a suspect points a gun in an officer's direction, the Constitution undoubtedly entitles the officer to respond with deadly force.  Reasonableness does not always require officers to delay fire until a suspect turns a weapon on them.  If a person is reasonably suspected of being armed, a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.  These principles apply even when the officers make a reasonable mistake of fact about the threat.  Taking the allegations of the complaint in the light most favorable to the decedent, the court concluded that the officers' mistaken belief that the decedent possessed a dangerous weapon was reasonable, and that they were justified in using deadly force when he pointed it at them.  That the weapon turned out to be a replica does not change the analysis.  The weapon, like all replicas, was presumably intended to look like a real firearm.  The only indication it was not real was the orange-painted tip.  The officers were reasonably justified in not taking the decedent's assurances that the gun was a BB gun at face value, since misplaced trust could be fatal.  Under the totality of the circumstances, it was objectively reasonable for the officers to believe the decedent posed an immediate threat.  The district court properly concluded that the complaint could not be saved by amendment, especially since the plaintiffs had been given leave to amend previously.  Although the plaintiffs contended discovery could reveal additional circumstances, pleading standards must be met before unlocking the doors of discovery.

Ordinances That Operate to Bar Homeless Individuals with No Access to Shelter from Sleeping on Public Property Violate Eighth Amendment

In Martin v. City of Boise, published September 4, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant city in an action brought by homeless individuals who had been convicted of or cited for violating the city's camping or disorderly conduct ordinances by sleeping outside on nights when they had no alternative shelter available.  The district court ruled that Heck v. Humphrey barred the plaintiffs' suits for retrospective relief, because none had appealed their convictions or raised the Eighth Amendment as a defense in their prosecutions.  It further ruled that the two plaintiffs who had not been convicted of their citations lacked standing to pursue prospective relief, because the city had amended its ordinances to permit sleeping outside when the homeless shelters in the city self-reported that they were full.

The 9th Circuit affirmed the Heck ruling concerning retrospective relief as to all plaintiffs except the two who were not convicted.  The majority held, however, that Heck did not bar prospective relief.  It also rejected the standing holding, since the shelters only had to self-report that they were full, and that self-reporting was not reliable.  On the merits, the 9th Circuit followed its earlier ruling in Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), which was vacated due to a settlement of the underlying matter.  It held that the ordinances, to the extent they barred sleeping outside for those who had no alternative shelter, violated the Cruel and Unusual Punishments clause of the Eighth Amendment by criminalizing conduct that should not be criminalized.  The clause imposes substantive limitations on what may be made criminal and punished as such.  For the rare Eighth Amendment challenges to the state's power to criminalize particular behavior or status, the plaintiff need prove only prosecution, not conviction.  Just as the state may not criminalize being homeless, it may not criminalize conduct that is an unavoidable consequence of being homeless.  As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.  That does not prevent the government from imposing time and place restrictions, or apply to those who choose not to take advantage of available public shelters.

A dissenting judge objected that Heck v. Humphrey, when it applied, should preclude both restrospective and prospective relief.