Lethal Force Redefined by Ninth Circuit

Although the Ninth Circuit seems to get reversed a lot, they have another lethal force decision. This one appears to muck with the legal definition. In Smith v. City of Hemet they look at a police excessive use of force case, but they also get an opportunity to rewrite law:

We also take this occasion to bring our circuit into line with the others with respect to the definition of “deadly force.”
… We also hold that in this circuit “deadly force” has the same meaning as it does in the other circuits that have defined the term, a definition that finds its origin in the Model Penal Code. We define deadly force as force that creates a substantial risk of causing death or serious bodily injury.

Why is this important to the case? Because Smith's behavior was supposedly not enough to warrant excessive force…

By even the defendants’ account, the force used against Smith was severe. The Hemet Police Department’s use of force policy, General Order U-102, classifies the use of both pepper spray and a police service dog as “intermediate” force. Defendants acknowledge that they employed both types of force, and that “intermediate” force is the most severe force authorized short of deadly force.

More severe than “intermediate”? You decide:

Under the facts as we must assess them for purposes of this appeal, the officers slammed Smith against the wall, threw him to the ground, slid him off the porch while face down, pepper-sprayed him repeatedly, and either permitted or instructed Quando [the police service dog] to attack him on three occasions,6 at least one such attack occurring while the officers had him pinned to the ground. The canine assault resulted in Quando’s teeth puncturing the skin on various parts of Smith’s body.

This is some discussion that concludes that the police did not need to use lethal force, and the police pretty much agreed.

Unfortunately, the Supreme Court did not explicitly define what constitutes deadly force in Garner, and the definition that we have previously announced is incorrect. In Vera Cruz v. City of Escondido, 139 F.3d 659, 663 (9th Cir. 1998) (as amended), this court considered the meaning of the term. In that case, we held that deadly force means “force reasonably likely to kill.” Id. at 660. In doing so, we expressly refused to add “or result in serious bodily injury,” a phrase that appears in the definition employed by all other circuits that have defined the term. Id. at 661-62. Similarly, we deliberately chose “reasonably likely” rather than “creates a substantial risk,” the phrase employed by all other courts of appeals to have confronted the question. Id. at 662-63. The definition the other circuits have adopted and that we adopt today is identical in most respects to that set forth in the Model Penal Code. See Model Penal Code § 3.11(2) (1962).

This time I think the Ninth Circuit is heading in the right direction, Deadly force should include “serious bodily injury” as such injury creates a finite possibility of getting killed. This new definition more closely follows the basic definition I use when teaching on the subject of deadly force:

That force which a reasonable and prudent person would consider capable of causing death or grave bodily harm.

This comes the Mas Ayoob's Judicious Use of Lethal Force coursework, and my subsequent certification to teach that same material.

Josh Poulson

Posted Wednesday, Feb 2 2005 06:02 PM

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