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Wayne C. Beyer

Abstract

The Fourth Amendment permits police to use deadly force when there is an imminent threat of serious bodily harm or death to themselves or others. Although the governing standard is well established in a general way, its application to particular facts and circumstances may not be clear to officers on the street. Unless a reasonable police officer would have understood that his/her decision to shoot was clearly constitutionally prohibited, the officer may be entitled to qualified immunity, a decision that the court can make on summary judgment before trial. Discussed first are shootings that are not subject to Fourth Amendment review: shots that do not seize a subject because they miss or are accidental; and shootings of those already in confinement, who are protected by the higher "intent to harm" and "malicious and sadistic" standards of the Due Process Clause and the Eighth Amendment. Discussed next are the most common fact patterns involving police shootings: a subject armed with a gun, armed with an edged weapon (e.g., knife), using a motor vehicle as a weapon, apparently reaching for a weapon, engaged in a violent struggle, or fleeing. Discussed last are recurring Fourth Amendment issues, namely: whether pointing without shooting is excessive force; when an off-duty officer is operating under the strictures of the Fourth Amendment; if an officer can be relieved from the requirement that he/she give a warning before shooting; when firing multiple times constitutes excessive force; and whether written police policies and procedures, the existence of less-than-lethal alternatives, and events leading up to the shooting are pertinent to the Fourth Amendment reasonableness inquiry. The issue of when Fourth Amendment scrutiny attaches in an intentional, self-defense police shooting case is an important and unsettled area of federal law.

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