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Richardson v. McGriff11/15/2000
and at the immediate time of the shooting; the "knowledge, facts and circumstances known to the officer at the time he exercised his split-second judgment as to whether the use of deadly force was warranted." Reasonableness is evaluated from the officer's perspective at the time, not with 20/20 hindsight. What Deputy Reich knew about Deering and the basis for the warrant would seem to fall within these parameters. After all, we can only assume police do not approach the arrest of a jaywalker and a cop killer in the same fashion. Id. at 650 (citations omitted).
The Court then discussed Garner and its balancing consideration:
he Court [in Garner] considered the constitutionality of a Tennessee statute which authorized the use of deadly force against an unarmed, nondangerous fleeing suspect. In finding the statute unconstitutional, the Court specifically rejected the idea that the Fourth Amendment has nothing to say about how a seizure is made. Rather, in language which is cited over and over, the Court said that in order to determine the constitutionality of a seizure, one must "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." At 8, 105 S.Ct. 1694, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In the balancing, "it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out." 471 U.S. at 8, 105 S.Ct. 1694. Id. at 650-51.
The Deering Court substantiated this view, by examining Brower v. County of Inyo, 884 F.2d 1316, 1318 (9th Cir. 1989), and explained:
. . . Brower involved a roadblock consisting of an 18-wheeler set up across a 2-lane road out of sight around a curve with the headlights of a police car trained on the approach so as to blind an oncoming driver. Brower, a fleeing suspect, slammed into the roadblock. The primary issue in the case was whether the driver's death constituted a seizure, and the unanimous conclusion was that it did. But the issue remained as to whether the seizure was reasonable. On remand [from the Supreme Court in Brower v. County of Inyo, 489 U.S. 593, 109 S. Ct. 1378, 103 L.Ed.2d 628 (1989)], the Court of Appeals for the Ninth Circuit assumed the high-speed chase which preceded the crash into the roadblock arguably constituted as a matter of law a substantial threat to the officers which would justify the use of deadly force. Nevertheless, the court said,
here remains the question whether such force was necessary to prevent the escape. Necessity is the second prerequisite for the use of deadly force under Garner. The necessity inquiry is a factual one: Did a reasonable non-deadly alternative exist for apprehending the suspect? Id. at 651 (citing Brower, 884 F.2d at 1318).
"Applied to our case [Deering], both the time and manner of the execution of the warrant are part of the totality of the circumstances." Id. See also Alexander v. City and County of San Francisco, 29 F.3d 1355, 1357 (9th Cir. 1994).
The Deering Court also refused to restrict the totality of the circumstances because in other cases within the same circuit, the underlying crime could sometimes be a factor in determining whether the police acted reasonably in using deadly force. Specific to Deering, the Court assessed whether the basis for the warrant, i.e., that it was issued for a misdemeanor, could be considered by the jury. Noting that Graham contemplated consideration of the severity of the underlying crime, Deering stated:
Estate of Starks v. Enyart, 5 F.3d 230 ([7th Cir.] 1993), involved both
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