The National Police Association Challenges Dangerous Judge-Made Rule in New Filing with the United States Supreme Court

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Aug 03, 2021, 09:00 ET

INDIANAPOLIS, Aug. 3, 2021 /PRNewswire/ -- In a friend-of-the-court brief filed June 30 with the United States Supreme Court, the National Police Association (NPA) argued that the Court should overturn a judge-made rule which places both officers and suspects in an impossible decision-making bind during highly dangerous situations. The Tenth Circuit most recently relied on this judge-made rule to deny officers' summary judgment in a case called Bond v. City of Tahlequah.

In Bond, officers were called to remove an intoxicated suspect from his ex-wife's property. When arriving on the scene, officers encountered the subject near the property's garage. As they attempted to coax the suspect out, one officer stepped into the garage towards the suspect. The suspect ran to the back of the garage and grabbed a claw hammer from a workbench, turning it so that the claw-prongs of the hammer faced the officers. Officers entered the garage, repeatedly commanding the suspect to drop the hammer. The intoxicated suspect refused to comply, instead raising the claw hammer over his head in preparation to throw it at the officers. The officers, who were eight to ten feet away, repeated their commands to drop the hammer. The suspect, however, raised it even higher in anticipation of throwing it. The officers shot and killed him.

The suspect's estate sued, alleging that the officers used excessive force. In a use-of-force case, the all-important question is whether the officer's conduct was reasonable when the officer took action. The trial court found in favor of the officers because it believed the officers' decision to shoot the suspect after he raised the claw hammer was reasonable. The case involved a straightforward application of established Supreme Court use-of-force law. The trial court's decision was correct under almost any view.

The Tenth Circuit Court of Appeals, however, disagreed. In a ruling that upset over thirty years' of Supreme Court precedent on use-of-force cases, the Tenth Circuit reasoned that the officer's decision to step into the garage before using force could have possibly provoked the suspect into grabbing the claw hammer. For that reason, the Tenth Circuit ruled that an otherwise reasonable use of force (shooting the suspect as he was about to throw a claw hammer at officers less than ten feet away) could be transformed an unreasonable use of force simply because one officer took one step towards the suspect and provoked the need to later use force. This rule is generally referred to as the "provocation" rule.

The officers and the City of Tahlequah appealed the Tenth Circuit's decision to the United States Supreme Court. The NPA filed a friend-of-the-court brief in support of the officers, arguing that the Supreme Court should take the case and overturn the provocation rule. The NPA argues that the provocation rule forces officers to predict every possible reaction a suspect might have to an officer's conduct before the officer takes any further action. This creates highly dangerous situations for both officers and suspects alike. It is well-known that many emergency calls made to police involve suspects that are under the influence of alcohol or other mind-altering substances. The NPA argues that under the provocation rule, an officer must predict every possible way an intoxicated suspect might respond to that officer's action before taking action. Officers will have to waste precious seconds figuring out how suspects—who are often prone to overreacting to even the slightest gesture—will act. This will inevitably stop officers from taking decisive action to end threats to the officer, the public, and the suspect themselves. Even more dangerously, however, the rule creates a situation where if the officer "chooses wrong" and does something to which the suspect reacts, the officer forfeits the ability to do anything else—including subduing the suspect—because a judge could now later find the officer liable for "creating" the situation.

This could create a difficult dilemma for officers. For example, consider an officer who responds to an intoxicated suspect threatening customers at a grocery store. According to the provocation rule, the officer must take into account all possible reactions the suspect could take before engaging him. The seconds the officer spends analyzing the suspect place citizens in the grocery store in danger, as the suspect could act before the officer has control of the situation. On the other hand, if the officer acts first—even by taking one step toward the suspect—and the intoxicated suspect reacts, the provocation rule suggests the officer should simply stop engaging the suspect lest the officer later be accused of "creating" the situation. This too imperils citizens and the officer because the intoxicated suspect could now act with impunity, free from the possibility of being detained.

As this example shows, the provocation rule creates a Catch-22 that could lead to the needless loss of officers' lives and citizens' lives. Such a rule is impossible to apply to the fast-paced, dangerous situations often posed by arrests, and the NPA is taking a leading role in opposing its further recognition.

The National Police Association is represented by Robert S. Lafferrandre of Pierce Couch Hendrickson Baysinger & Green, L.L.P., of Oklahoma City, Oklahoma. The case is Bond v. City of Tahlequah, No. 20-1668 before the United States Supreme Court. The amicus brief can be read here:

https://www.supremecourt.gov/DocketPDF/20/201668/182852/20210630004957560_NPA%20Amicus%20E%20File%20June%2030%202021.pdf.

About The National Police Association
The National Police Association (NPA) is a 501(C)3 non-profit organization, EIN 82-0647764, founded to educate supporters of law enforcement in how to help police departments accomplish their goals. The NPA works to bring national and local attention to the anti-police efforts challenging effective law enforcement, building public support for needed actions through public service announcements, legal filings, articles authored for the NPA by law enforcement experts and the NPA Report. For additional information, please visit www.nationalpolice.org.

SOURCE National Police Association