Latasha M. James, Comment, Excessive Force: A Feasible Proximate Cause Approach, 54 U. Rich. L. Rev. 605 (2020).
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“You shot me.”
“I don’t have a gun. STOP!”
“I can’t breathe.”
“Officers why do you have your guns out?”
These are the last words of four men whose deaths at the hands of police officers stirred the public and created concern about police use of excessive force and a failure of the justice system to vindicate these civil rights violations. Unfortunately, even in the face of such publicity, excessive force cases continue to surface while the results in the courtroom remain the same. This raises concerns as to both preventing the use of excessive force and ensuring justice is adequately served when such claims arise. There is no question that the substance and enforcement of the law act together to deter unwanted societal behavior. So, why do the laws against excessive force fail to act as deterrents? Many of these concerns stem from the application of the “objective reasonableness” standard used to analyze these types of cases. Some courts use only the moments immediately preceding the use of force to determine if the officer’s actions were reasonable, while other courts may choose to look at actions the officer took leading up to the use of excessive force. This variance in interpretation has led to inconsistent results and a failure to deter.
The Supreme Court provided a potential solution to this issue in its recent decision, County of Los Angeles v. Mendez. In the Mendez case, the Supreme Court struck down one use of the officer’s prior conduct to determine reasonableness while opening the door for an opportunity to use proximate cause to analyze how this behavior may have led to the use of excessive force. This Comment uses the Mendez case to propose a framework for using the tort concept of proximate cause in the objective analysis of excessive force cases.
Consider for a moment the following scenarios:
Scenario A. Officers stop a man walking down the street heading to work. The officers are in full uniform and in their police car. They incorrectly identify the male as a suspected robber. As the officers tell the suspect that he is under arrest and attempt to detain the suspect by grabbing his arm, the suspect decides to run. The officers chase the suspect and tackle him, breaking his collarbone in the process.
Scenario B. Plainclothes officers in an unmarked vehicle spot a robbery suspect running down the street. The officers, with their guns drawn, approach the suspect and try to grab the suspect by the arm to arrest him. At the same time that the officers grab the suspect’s arm, the officers begin to tell the suspect he is under arrest. Before the officers can complete the arrest, the suspect responds by punching one of the officers. The two engage in a scuffle, and one of the officers shoots the suspect.
Scenario C. It is after midnight, and uniformed officers armed with a search warrant knock on a suspect’s door. Unbeknownst to the officers, they are at the wrong house. The homeowner answers the door holding a gun not initially visible to the officers. The homeowner refuses to let the officers in after he surveys the warrant and realizes it is not his address. The officers enter the residence by force and upon seeing that the homeowner has a gun, fatally shoot him.
Scenario D. Undercover officers in an unmarked car, riding through a neighborhood known for drug dealing, see what they believe is a drug sale going on at the door of a home. The officers approach the home, and as they enter the residence, yell “police.” Someone in the home fires at the officers who fire back, wounding a child in the next room. The witnesses in the home later testify that from the front window, they saw two people approaching their home. Per the witnesses, those two people entered the home without knocking, and the homeowner fired shots at the supposed trespassers.
In each of these scenarios, the officers used force in response to the citizen’s actions. As discussed through the cases used in this Comment, courts generally apply the excessive force standard without considering whether law enforcements’ pre-seizure conduct led to the citizen’s response. Because of this failure to consistently use officers’ pre-seizure actions in the excessive force evaluation, court decisions throughout the country have been inconsistent and, at times, unfair. This Comment seeks to provide a standard for determining when a citizen’s response to police action is reasonable and how that correlates to a finding that law enforcement has used excessive force and proximately caused the citizen’s injuries.
Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the Ninth Circuit applied proximate cause in an excessive force case that ultimately held that an officer’s pre-shooting conduct proximately caused the citizen’s injuries. Part II provides a solution for the inconsistent way courts address officers’ pre-shooting behavior by including proximate cause as part of the objective reasonableness analysis in determining whether officers’ pre-shooting conduct proximately caused the use of the excessive force, leading to the citizen’s injuries. The Comment concludes with an application of the suggested standard to the scenarios detailed above.
* J.D. Candidate, 2020, University of Richmond School of Law; M.P.A., 2011, Virginia Commonwealth University; B.A., 2001, Valdosta State University. I want to express a sincere thank you to Professor John F. Preis for his direction, guidance, and instrumental feedback. Thank you to the University of Richmond Law Review staff for their irreplaceable assistance in the editing process. I also want to give a wholehearted thank you to my husband and daughter for their continued support and encouragement throughout this entire endeavor.