Police, The Fourth Amendment, Qualified Immunity

Insightful opinion on “police assisted suicide”

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Case: Brown v. Blanchard, Dist. Court, ED Wisconsin 2014


However, even if Blanchard establishes that he reasonably thought Brown was advancing on the deputies with an upraised knife, a question would remain as to whether Blanchard unreasonably seized Brown. In assessing whether a police shooting is reasonable, the totality of the circumstances is not “limited to the precise moment when [the officer] discharged his weapon.” Deering v. Reich, 183 F.3d 645, 649 (7th Cir.1999). Rather, a court must assess “all of the events that occurred around the time of the shooting.” Id. at 652. The actions of the police officer that led to the shooting are relevant. Estate of Starks v. Enyart, 5 F.3d 230, 233-34 (7th Cir.1993). An officer who shoots a suspect in an effort to protect himself cannot escape liability if the danger he faced was created by his own unreasonable conduct. Id. at 234; accord Catlin v. City of Wheaton, 574 F.3d 361, 369 n.7 (7th Cir. 2009); Sledd v. Lindsay, 102 F.3d 282, 287-88 (7th Cir. 1996); Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994); see also Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (holding that officer is liable for excessive force if his or her own “reckless or deliberate conduct during the seizure unreasonably created the need to use such force”); Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995) (same).

Here, a reasonable jury could conclude that Blanchard “unreasonably created the encounter that led to the use of force.” Sledd, 102 F.3d at 288. Blanchard knew that Brown was suicidal and bipolar, that he had been drinking, and that he had a knife. He also knew that, if left alone, Brown could not have harmed anyone other than himself, as Brown was the only person in the bedroom. Thus, Blanchard’s only legitimate ground for initiating a seizure of Brown was to prevent him from harming himself. Yet, it is hard to see how Blanchard’s actions—kicking in the door, ordering Brown to show his hands and drop the knife, and pointing his gun at Brown—were reasonably calculated to achieve this end. Since Brown was contemplating suicide, he was unlikely to obey the deputy’s commands to surrender. Moreover, a reasonable officer would have known that there is a high likelihood that a suicidal person will respond to an officer’s show of force with an action that is likely to provoke the officer to use deadly force, as the person may wish to commit “suicide by cop.” See Wis. DOJ Law Enforcement Standards Board, Crisis Management: A Training Guide for Law Enforcement Officers 66 (2007); ECF No. 29-1 (hereinafter “Crisis Management Guidelines”). In light of these risks, Blanchard needed to have a compelling reason to enter Brown’s bedroom with his gun drawn. Yet, in his affidavit, Blanchard never explains why he decided to “force entry into Mr. Brown’s bedroom.” Blanchard Aff. ¶ 24, ECF No. 26. To be sure, he explains why he decided to kick the door open rather than unlock it, but he does not explain why he decided to enter the bedroom in the first place. He never explains what he hoped to accomplish once he was inside. Did he plan on ordering Brown to surrender and hoping that he would comply, or did he have a more reasonable goal in mind? Why didn’t Blanchard simply continue to allow Such to monitor Brown through the window and either continue talking to Brown through the door or wait for him to calm down? If Such saw that Brown was using the knife to commit suicide, then at that point Blanchard could have broken into the room and tried to help him. At the time Blanchard decided to enter, however, there was no indication that Brown had the knife hovering over his wrists or was otherwise on the verge of committing suicide. Rather, Such had just informed Blanchard that Brown “was sitting at his computer desk with his back towards the bedroom door, and that he was smoking a cigarette and drinking a beer.” Such Aff. ¶ 19. In short, absent some reasonable explanation for Blanchard’s entering the bedroom almost immediately after arriving on the scene and creating a situation in which the need to use deadly force would be likely, it is impossible to conclude that Blanchard’s conduct during the seizure was reasonable. Accordingly, Blanchard may have violated the Fourth Amendment even if, at the time he fired the shots, Brown was threatening to seriously harm the deputies.

Written by Burgers Allday

July 27, 2014 at 10:16 am

Posted in Uncategorized

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