By Robert Phillips 
Deputy District Attorney (ret.) 

• Case Law and Legal Concepts 
• Use of deadly force and qualified immunity 
• Use of deadly force and the failure to warn 
• Deadly force used on mentally disturbed person 

Rule: The use of deadly force against a person armed with a knife, where no attempt to use the knife offensively is made and nothing is done by officers to de-escalate a potentially volatile situation, will subject the officers to potential civil liability. 

Facts: Katy Nolan, of Seattle, Wash., lived with her mentally unstable and physically abusive boyfriend, Ryan Smith. On April 14, 2019, Seattle police responded to their apartment after Nolan report that Smith “was being abusive.” The police talked with Smith, who told them that he suffered from depression, took medication, but was not suicidal. That incident was temporarily resolved by Nolan leaving their apartment to stay a few nights with a friend. Three and a half weeks later, on May 9, Nolan again called police. She reported that Smith, who was armed with a knife, was threatening to kill both himself and her. Nolan was calling from her bathroom, where she had locked herself in as Smith used his fingernails to scrape on the bathroom door in an apparent attempt to terrorize her.  

Nolan also reported that although she was okay, “blood was everywhere,” but that she didn’t know if Smith was hurt. Four Seattle police officers responded to the call, two of whom were the same officers who had responded to her earlier call. As the officers were en route, the dispatcher transmitted what turned out to be an inaccurate message, telling the officers that the “caller is now saying there’s blood everywhere inside the bathroom.” All four officers’ bodycams were turned on and all four wore protective vests. Three of the officers were armed with Tasers.  

After unsuccessfully demanding entry to the apartment, one of the officers kicked in the locked front door. Upon doing so, the 5’7”, 143-pound Smith was found standing in the hallway with his hands at his side, holding an open pocketknife in his right hand. Over the span of approximately five seconds, the officers shouted overlapping commands: “Put your hands up!” “Let me see your hands!” “Get on the f**king ground!” “Drop the knife!” “Get on the f**king ground!” and “Drop the knife!” Smith took several steps forward, causing the officers to all back into the hallway. Nolan, still on the phone, was recorded telling the dispatcher: “I can hear the cops. No, please don’t shoot. No!”  

As Smith continued to move forward, he raised this right arm across his chest, still holding onto the knife, in possible compliance with the officers’ demands that he put his hands up. None of the officers warned Smith that they were about to shoot or to use force against him. The parties dispute whether Smith was still moving toward the officers. Either way, one of the officers began to fire his gun, shooting eight rounds. A second officer, who had also responded to the previous call and had built a rapport with Smith, shot two rounds. As recorded on the officers’ bodycams, 5.87 seconds elapsed between when the officers kicked in the door and the first shot. Smith was killed.  

Smith’s mother, Rose Johnson, and others sued the two officers who shot Smith, the Seattle police dispatcher, and the city of Seattle in federal court pursuant to 42 U.S.C. §1983. In pretrial hearings, the civil defendants’ motion for summary judgement to dismiss the case, asserting “qualified immunity,” was denied. The civil defendants appealed. 

Held: The Ninth Circuit Court of Appeal affirmed. The rule on appeal is well-settled: “An officer asserting a defense of qualified immunity should be denied summary judgment if ‘(1) the [evidence], taken in the light most favorable to the party asserting injury (the plaintiffs), show[s] that the officer’s conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood [his] conduct to be unlawful in that situation.’” (Torres v. City of Madera (9th Cir. 2011) 648 F.3rd 1119, 1123.)  

The court is to “analyze claims of constitutionally excessive force ‘under the Fourth Amendment’s “objective reasonableness standard.”’ (Saucier v. Katz (2001) 533 U.S. 194, 204; quoting Graham v. Connor (1989) 490 U.S. 386, 388.) “We judge reasonableness ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” (Graham, supra, at p. 396; citing Terry v. Ohio (1968) 392 U.S. 1, 20-22.) “The ‘use of deadly force is reasonable only if “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”’” (Gonzalez v. City of Anaheim (9th Cir. 2014) 747 F.3rd 789, 793; quoting Scott v. Henrich (9th Cir. 1994) 39 F.3rd 912, 914.)  

The issue in this case was “whether the officers were in such immediate danger that (the two officers)...were justified in shooting Smith without warning within seconds of breaking down the door.” In determining whether the force used was objectively reasonable, the court considered other “available alternative methods of capturing or subduing” Smith. It was also noted that the second officer who shot Smith had talked to him some three and a-half weeks earlier, “buil[ding] an awesome rapport” with him, and was therefore familiar with his issues.  

In this second contact, the court pointed out that it was undisputed that none of the officers had attempted to reestablish this rapport or otherwise de-escalate the situation. Instead, all the officers immediately began shouting overlapping commands at him. Smith had apparently stopped (although this was disputed) after taking a few steps forward and began to comply with the officers’ commands to put his hands up. In so doing, nothing occurred that might have indicated to the officers that Smith was threatening them with the knife.  

At the same time, none of the officers deployed their Tasers and none of the officers warned Smith that they were about to use deadly force. Instead, one of the officers initiated a barrage of eight shots just a little less than six seconds after the door had been kicked in, with another officer quickly following the first by shooting Smith two more times.  

The court had no difficulty finding that a reasonable juror could conclude under these circumstances Smith did not pose such “an immediate threat to the safety of the officers or others” and that the use of deadly force was not justified. The court further held that the rule here was clearly established by prior case law, citing Glenn v. Washington County (9th Cir. 2011) 673 F.3rd 864 (where the decedent held a knife to his own throat), which was sufficiently similar to the instant case to put the officers on notice that the force used was unreasonable under these circumstances. The court therefore concluded that the trial court did not err in denying the civil defendant’s motion for summary judgment. 

Author's Notes: Keep in mind that at this stage of the proceedings the court is legally obligated to assume that the plaintiffs’ version of the facts is true. After a full trial, with all the witnesses testifying, a jury may conclude otherwise. But even if the plaintiffs are exaggerating a bit, this author has to say that it appears the officers were way too quick to resort to deadly force. Even if the officers’ version of the facts is true, there is no evidence Smith was threatening them with his knife or ever intended to use it offensively.  

Merely holding onto a knife is not sufficient cause to kill a man. I understand that a person can throw a knife at officers in a matter of seconds, possibly quicker than those officers might be able to respond. But to justify the use of deadly force, there has to be some indication that the person intends to do so. I didn’t see any evidence of such intent in this case.  

I have long been a big critic of officers being too quick to shoot, particularly when the target is one with mental issues who is more in need of help than being killed. A knife, while potentially lethal, is not nearly as dangerous as a firearm. The difference between the two was clearly forgotten in this case.  

I am told that officers today are being trained to “de-escalate” a potentially dangerous situation, as opposed to aggravate it. The officers here did not even attempt to do so.