Qualified Immunity and Armchair Quarterbacks

Four years ago, Daniel Hernandez died on the street in Los Angeles because of his own inexcusable act of coming at a police office with a raised knife* in his hand and continuing after repeated warnings. So, as is common these days, there were protests and a lawsuit claiming that the police violated his civil rights.

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the federal civil rights actions on March 21 in Estate of Hernandez v. City of Los Angeles, though it held that state-law claims can go forward. Parsing the various shots fired by Officer Toni McBride, the court held that the first and second volleys were clearly justified but a third pair of shots presented a question of excessive force. Qualified immunity applies, though, because the law is not clearly established regarding the later shots. This holding raises the usual squeals that the qualified immunity standard is too restrictive, requiring a precedent that is a factual match. See, e.g., this article by Kevin Rector in the LA Times.

I agree with the Ninth Circuit’s legal analysis of the qualified immunity question. It correctly applies U.S. Supreme Court precedents on the subject. What I find troubling about the case, though, is the exercise of people in their comfortable offices carefully parsing video of an event on the street that happened in mere seconds.

This is not a new phenomenon. Teddy Roosevelt gave a famous speech over a century ago:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows the great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

Or in this case the woman who was actually on the scene.

There was video of the incident available, and the court proceeded to parse it:

We also conclude, however, that the evidence in this case would permit a reasonable trier of fact to find that McBride fired three temporally distinct volleys of two shots each. See supra at 7–9. Indeed, there is almost a two-second pause between McBride’s second and third shots, and there is about a one-second pause between her fourth and fifth shots. Accordingly, even though McBride’s first volley of shots was reasonable as a matter of law, we must still consider whether she “acted unreasonably in firing a total of [six] shots.” Plumhoff, 572 U.S. at 777. On that score, Plumhoff holds that, “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Id. We have cautioned, though, that “terminating a threat doesn’t necessarily mean terminating [a] suspect.” Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017) (emphasis added). Thus, if an initial volley of shots has succeeded in disabling the suspect and placing him “in a position where he could [not] easily harm anyone or flee,” a “reasonable officer would reassess the situation rather than continue shooting.” Id.

So it appears that the total time from the first shot to the last was somewhere in the neighborhood of five seconds. Looking at the video, the court says that Hernandez might not have been a threat at the time of the third volley of two shots. “A reasonable jury could find that, at the time of the fifth and sixth shots, Hernandez was no longer an immediate threat, and that McBride should have held her fire unless and until Hernandez showed signs of danger or flight.” (Brackets and internal quote marks omitted.) Is this a reasonable way to the judge the actions of a person faced with a deadly threat who must react within seconds? I don’t think so.

Earlier in the discussion, the Ninth Circuit opinion noted the Supreme Court’s recognition of this aspect of the problem.

The overall assessment of these competing factors [determining reasonableness of use of force] must be undertaken with two key principles in mind. First, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Kisela, 584 U.S. at 103 (citation omitted). Second, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. (citation omitted).

Right. Keeping that in mind, it is incorrect, in my opinion, to parse out different shots fired within a few seconds of each other. This was a fully justified use of force. It is unfortunate that Daniel Hernandez’s family has lost him, but the fault for that result lies 100.00% with Daniel Hernandez himself. When a police officer says halt and put down the knife, you halt and put down the knife. It’s not hard.

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* The opinion quibbles about whether a box cutter is a “knife.” It is. After 9/11/2001, no one can doubt that box cutter knives are deadly weapons.