The Supreme Court should settle a confusion over how police tactics preceding an officer-involved shooting may affect constitutional rights.
Robert VerBruggen June 28, 2021 @ City Journal. Published with permission.
Five summers ago, a woman in Tahlequah, Oklahoma, called 911. “Hey, can I get somebody to come over to my house?” she asked. “My ex-husband is in the garage, he will not leave, he’s drunk, and it’s going to get ugly real quick.” In the brief conversation that followed, she added that her ex was a registered sex offender, that he did not live there, and that he still had some tools in the garage. Perhaps unsurprisingly, tragedy ensued—and the subsequent legal battle has produced a confusion that the Supreme Court ought to resolve.
After the woman’s 911 call, three officers came out, and they ended up speaking to Dominic Rollice, the ex-husband, near the side door to the garage. The police told Rollice that they wanted to get him a ride elsewhere; he said that he already had one coming. An officer asked to pat Rollice down for weapons, finding the man “fidgety,” but he refused.
What happened next was captured on an officer’s bodycam video (though the audio doesn’t kick in for about half a minute). An officer stepped toward Rollice, who moved into the garage. When he reached the back of the garage, Rollice grabbed a claw hammer and turned around, wielding it in both hands. The officers have claimed that Rollice said “one of us is going to fucking die tonight” at this point, but the recording’s audio is still missing.
The cops backed up and drew their guns. Rollice walked to the side with the hammer held high in one hand behind him and the other hand outstretched in front, stepping out from behind a chair so that there was a clear path between him and the officers—who stood within about ten feet of him. They repeatedly told Rollice to drop the hammer, but he refused. One officer replaced his handgun with a Taser.
Then, the fateful motion: Rollice pulled the hammer back as if, perhaps, to throw it or charge the officers. The officers opened fire, with the Taser missing but several handgun rounds striking him. Rollice crouched to the ground and lifted the hammer yet again, and an officer fired one last round. Rollice died from the wounds.
A Cherokee County prosecutor declined to charge the officers, given that Rollice was on video menacing them at close range with a deadly weapon. But Rollice’s estate sued the two officers who shot him, as well as the city, in federal court, alleging that the police had violated the deceased man’s Fourth Amendment right to be free of unreasonable search and seizure (including apprehension by force). The estate argues that the officers were wrong to open fire, because Rollice’s movement with the hammer was defensive rather than aggressive; that the final shot was unjustified even if the initial barrage wasn’t, as Rollice no longer posed a threat; and that even if all the shots were justified at the moment they were fired, the officers should still be liable for the death, because the officers created the dangerous situation to begin with.
After several rounds of legal back-and-forth, the matter sits on the Supreme Court’s doorstep. That last argument advanced by Rollice’s estate could lead to a major ruling if the Court accepts a “cert” petition to hear the case.
City of Tahlequah v. Bond originated in the Tenth Circuit, where an appeals panel ruled that the case against the cops could go to trial. In the panel’s view, a reasonable jury could conclude that the officers’ actions before the shooting—including walking toward Rollice after he refused to be patted down and “cornering” him in the back of the garage near his tools—“recklessly” created the situation that led to lethal force, thus making the lethal force a violation of the Fourth Amendment. In some other circuits, the issue would simply be whether lethal force was constitutional at the moment the officers opened fire. That’s a question the Tenth Circuit panel pointedly declined to answer, saying it would be a “close call” and that the proper analysis involved looking at the bigger picture.
For its part, the Supreme Court has offered rather confusing guidance. In the seminal 1989 case Graham v. Connor, for instance, it said that courts must consider the “totality of the circumstances,” but it also spoke of reasonableness “at the moment” and cautioned that courts should make “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” In 2017’s County of Los Angeles v. Mendez, the Court held that even a clear Fourth Amendment violation at one point in time “cannot transform a later, reasonable use of force into an unreasonable seizure”—yet explicitly declined to rule on the similar issue of whether courts could consider “unreasonable police conduct prior to the use of force that foreseeably created the need to use it” when deciding whether the force itself was reasonable.
Nonetheless, the logic of the appeals panel is breathtaking. The officers had been called to remove an inebriated ex-husband from the home of his ex-wife, and up until the point Rollice grabbed the hammer, the police stand accused of little beyond talking to him and walking toward him. Nothing in the Constitution guarantees a right to trespass on your ex-wife’s property without being aggressively pestered by the cops, and yet in the Tenth Circuit’s view, such pestering can turn a subsequent shooting that would otherwise be allowable into a constitutional-rights violation. If such reasoning became standard, the natural reaction of police officers would simply be to give wider berth to criminals, so as to avoid “recklessly” provoking them and ending up in court.
None of this is to say that all courts should entirely ignore everything that happens before a shooting. There is room to hold officers and departments accountable for needlessly antagonizing, or otherwise severely mishandling, a situation that didn’t have to turn deadly—if not by labeling their actions a violation of the federal Constitution, then perhaps by tailoring state laws to cover such cases. But the boundaries need to be drawn far more carefully than the Tenth Circuit has drawn them.
The Tahlequah case, though brought under federal law, would be handled very differently in different parts of the country. The Supreme Court should take the case—and lay out, in a precise and fair way, exactly how police tactics leading up to a shooting may affect a court’s analysis of whether the shooting itself violated the Constitution.
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