From the DA’s Desk  

By Robert Phillips  

Deputy District Attorney (ret.) 

Case Law & Legal Issues 

Suicide by cop situations 

Use of deadly force 

Qualified immunity from civil liability 

Rule: Shooting a suspect who only holds a knife to his own neck, even if he refused to drop it while moving slowing toward the officer, is a potential violation of the Fourth Amendment. The fact that the suspect may have been involved in an attempted robbery or the brandishing of the knife beforehand is of little relevance. As such, the officer is not entitled to qualified immunity.  

Facts: On Nov. 11, 2019, the Phoenix Police Department received a 911 call reporting that a man with a knife had attempted a robbery at a local Home Depot. Two officers responded, arriving in separate cars. As the officers arrived, an additional report was made to the effect that the suspect was chasing another person with a knife in a nearby parking lot. The officers found the suspect, later identified as the plaintiff, Krish Singh, walking through a restaurant parking lot. He was not chasing anyone, but was carrying a knife. The officers positioned their police vehicles in an L-shaped configuration, blocking him. This began a two- to three-minute confrontation, beginning with the officers ordering him to stop and to show both hands. He declined, holding the knife against his own throat instead.  

The officers exited their vehicles and drew their firearms. Officer 1 aimed her gun at Singh and yelled: “If you come any closer, I’ll f*ing shoot you.” She told Singh to “drop the f*ing knife,” while she moved away, around the rear driver’s side of her patrol car, placing her vehicle between them. Singh responded: “What? I’m going to die anyway.” Officer 1 told Singh: “If you come any closer, I will kill you. Do you understand? Put the gun down.” Singh immediately corrected the officer by saying something to the effect of “it’s a knife.” (Duh!) In response, Officer 1 stated “I'm sorry, you’re right,” and told him to “put the knife down.”  

For the remainder of the encounter, with Singh continuing to hold the knife to his neck, he made several statements including that people thought he was “crazy” and that he wanted the officers to shoot him. At no point did Singh suggest that he intended to harm either of the officers or anyone else.  

Approximately two minutes into the interaction, Singh began to move slowly toward the front corner on the driver’s side of Officer 1’s patrol vehicle, which was still positioned between them. Officer 1 moved backward in response, telling Singh that she did not want to shoot him. Singh then said something to effect of “I want to get shot.” As Singh slowly inched forward toward Officer 1, Officer 2 repeatedly told him to stop or he would be shot. Singh persisted, telling the officer “Go ahead ma’am,” as he continued to move slowly toward Officer 1. Finally, as Singh appeared to stop next to the front of the police vehicle, Officer 1 fired a single round, striking him in the abdomen and causing him to fall to the ground.  

During the entire confrontation, until he was shot, Singh held the knife to his own neck, never brandishing it in either officer’s direction. Singh survived his injuries, subsequently suing the officers and the city of Phoenix pursuant to 42 U.S.C. § 1983 in an Arizona state court, with the case subsequently being removed to the federal court. The federal district (trial) court judge eventually ruled that although a reasonable jury could find that the officer violated Singh’s constitutional rights by shooting him, she was nevertheless protected by qualified immunity. Singh appealed. 

Held: The Ninth Circuit Court of Appeals reversed. The rule is simple, even if difficult at times to apply. In determining whether qualified immunity shields a police officer or other governmental official from being civilly liable, a court is to ask two questions; (1) “whether the facts that a (civil) plaintiff has alleged...or shown (by the evidence)...make out a violation of a constitutional right,” and (2) if so, whether that right was “clearly established” at the time of [the] (civil) defendant’s alleged misconduct.” (Pearson v. Callahan (2009) 555 U.S. 223, 232.)  

Stated differently, even if the actions of a police officer do in fact constitute a violation of the Constitution, “(q)ualified immunity shields government officials (including the officers and their employer) from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” (Taylor v. Barkes (2015) 575 U.S. 822, 825.)  

As noted, the district court judge found that the officers did in fact violate Singh’s constitutional rights by shooting him, a Fourth Amendment violation, but that because potential civil liability was not clearly established by any prior case law sufficient to put the officers on notice that they were perhaps violating the plaintiff’s civil rights, they were entitled to qualified immunity.  

The Ninth Circuit disagreed with the trial court judge on the second part of this test, whether the officers’ liability was clearly established by prior case law. Noting first that it is the plaintiff’s obligation to prove that there is prior case law that should have put the officers on notice, the court ruled that Singh satisfied his obligation to do this. The primary case of which the officers should have been is Glenn v. Washington County (9^th Cir. 2011) 673 F.3^rd 864.)  

In Glenn, officers responded to a domestic dispute involving an intoxicated and suicidal 18-year-old man named Lukus Glenn. Glenn was threatening his parents with a knife and was out of control. He was eventually confronted by one of the responding officers. The officer positioned himself about eight to 12 feet from Glenn, who was holding a pocketknife to his own neck. From the moment of his arrival, the officer “‘only scream[ed] commands loudly at Glenn such as ‘drop the knife or I’m going to kill you.’” Glenn, however, “may not have heard or understood these commands given that he was intoxicated and many people were yelling at once.  

After Glenn failed to respond to beanbag rounds shot at him, still holding the knife to his neck, and although he did not threaten anyone with the knife at the time, the officers shot and killed him. The Ninth Circuit held that the officers were not entitled to qualified immunity, “that the officers’ use of force was not undisputably reasonable.”  

Now, in this new case, the court found the circumstances sufficiently similar in that the officers should have been aware that shooting Singh was also “not undisputably reasonable.” In other words: “The facts in this case are similar to the facts in Glenn in all material respects.” 

First, both Singh and Glenn held knives to their own necks, neither brandished it at others, at least at that time.  

Second, both Singh and Glenn, while suicidal and not in an altercation with anyone else nor aggressively attacking the officers, ignored commands to drop a knife.  

Third, at least when confronted, neither was committing a serious crime.  

Fourth, neither was actively resisting arrest nor trying to escape.  

Fifth, the officers in both cases “were, or should have been aware that (the person confronted) was emotionally disturbed.”  

Sixth, in Glenn, the subject may not have understood the warnings given that he was intoxicated. In the instant case, in my opinion a bit of a stretch, the court held that while Singh may well have “heard and understood the officers’ warnings, they had no effect on him given his mental state. He responded quite simply that he wanted the police to shoot him.”  

And finally, “Less intrusive means were (arguably) available” to subdue either subject. Glenn ignored the beanbags shot at him. But in neither case was using a Taser or other “less lethal” means attempted. At the very least, the evidence on this issue was conflicting, and something a jury should be allowed to consider.  

Based upon the above, and after distinguishing this case from others where officers used lethal force in the face of an immediate danger, the court concluded that the officers in the instant case should have been aware that shooting Singh raised the specter of potential civil liability. As such, neither officer was entitled to qualified immunity. The district court’s dismissal of the case was therefore reversed, and the matter remanded for further proceedings. 

Author's Note and Opinions: The prior case or cases used to put officers on notice that what they’re doing might subject them to civil liability “need not be... directly on point...or even one with ‘fundamentally similar facts.” (See Chinaryan v. City of Los Angeles (9^th Cir. 2024) 113 F.4^th 888, 898-899.) “The facts of the prior case cannot be ‘materially distinguishable. They need only be close enough to “put (an officer)...on notice that his specific conduct was unlawful.’” (Rivas-Villegas v. Cortesluna (2021) 595 U.S. 1, 6.)  

I think the court here bent over backward a bit in some of its reasoning to find the circumstances confronting the officers in this new case similar to the Glenn case. But either way, I don’t disagree with its ultimate conclusion that shooting Krish Singh was unnecessary. While he could have very easily, or very quickly, turned the knife on the officers, the circumstances did not show that that was ever his intent. He was obviously more focused on committing suicide by cop than hurting anyone else.  

Officers today are armed with a host of less-lethal weapons that are intended for use in circumstances such as this. One of those, a beanbag firearm, was attempted in the Glenn case. None was used in Singh’s situation, with some very questionable excuses given as to why not. Officer 1 testified that she did not believe it was safe to use a Taser “because of the positions she and (Officer 2) were holding, because of ‘containment problems’ due to the open parking lot,” and that “(s)he did not feel that it would have been effective for her to have used the pepper spray or the Taser, given the distance between her and (the) plaintiff.” I have no idea what all that means, or why the distance between them could not have been adjusted accordingly, making a Taser or beanbag gun a viable alternative.  

But then I’m also opposed to shooting people armed only with a knife, as opposed to a firearm, at least in most circumstances, even though legally it may be justified in some cases. In this particular case, I can see the city of Phoenix getting stuck with a considerable financial payout for the officer’s premature and really unnecessary use of deadly force.