SCM NEWS & OPINIONS

Utah Legislature Considering Police Reform Bill

A lot happened in 2020 (hereinafter “the year that shall not be named”), but the movement for racial justice and police reform in the aftermath of the killing of George Floyd stands out as one of the year’s most significant events. And it appears that movement is carrying over into 2021, as Utah State Representative Kera Birkeland has introduced a bill under consideration in the current legislative session that would impose stricter requirements on police use of force.

For the remainder of this post, I will describe how the use of deadly force is currently regulated under Utah law and describe how Rep. Birkeland’s proposed legislation would change it. I will then describe additional use-of-force reforms contained in her bill and discuss the bill’s implications in civil rights law.

When Deadly Force is Justified Under the Current Law and Proposed Changes

In addition to constitutional limitations, police use of deadly force is currently governed by Utah Code Section 76-2-404, which provides that deadly force can be used in three situations.

First, an officer can use deadly force when making an arrest or preventing an arrestee’s escape so long as the officer has probable cause to believe that the suspect committed a felony involving the infliction or threatened infliction of death or serious bodily injury. Under the proposed legislation, however, deadly force is only justified if the officer has probable cause that the suspect committed a felony involving the infliction of death. That is to say, an officer could not use deadly force where they believe a suspect only threatened death. Nor could an officer justifiably use deadly force where they believe the suspect threatened to inflict serious bodily injury or even actually inflicted serious bodily injury. Rather, deadly force would only be justified under this prong if the officer had probable cause to believe that the suspect committed a felony involving a completed homicide. This is a significant change from the current Utah law and diverges from federal constitutional law.  See Tennessee v. Garner, 471 U.S. 1, 11–12 (1985) (“[If] there is probable cause to believe that [a suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”).

Second, an officer can use deadly force when making an arrest or preventing an arrestee’s escape where the officer has probable cause to believe that the suspect poses a threat of death or serious bodily injury to the officer or to others if apprehension is delayed. Rep. Birkeland’s proposed legislation would add an imminency requirement to this prong, meaning that deadly force is justified under these circumstances only if the officer believes the suspect poses an imminent threat of death or serious bodily harm to another. Further, “imminence” is strictly defined, meaning that “an individual has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury” to another individual “and that the threat of harm must be immediately confronted and addressed.” And just in case there is any confusion, “fear of future harm, no matter how great the fear or likelihood of harm,” does not qualify as an imminent threat. To justify the use of deadly force under this standard, officers would need to point to immediate and serious harms that they reasonably believed could only be prevented through deadly force.

Third, under the current law, an officer can use deadly force where they reasonably believe it is necessary to prevent death or serious bodily injury to themselves or another person. The proposed legislation would again add an imminency requirement to this prong, meaning that the threat of death or serious harm must be immediate.

The above summarizes the three situations where deadly force is justified under the current law, but Rep. Birkeland’s legislation subtly takes things one step further by defining a previously undefined term: necessary. In any of the above situations, an officer must reasonably believe that deadly force is necessary. But the proposed legislation clarifies that deadly force is only necessary if, given all the facts known to an officer at the time, a reasonable officer “in the same situation would conclude that there was no reasonable or non-lethal alternative to the use of deadly force that would prevent death or serious bodily injury” to the officer or someone else. This would represent a major reform that would raise the governing standard for use of force above that which is currently enshrined in constitutional law.  See Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001) (explaining that the reasonableness standard of the Fourth Amendment “does not require that officers use alternative less intrusive means” (cleaned up)). Under the proposed “necessary” standard, officers who use deadly force would be criminally liable if it is determined after the fact that they should have known that lesser force—Tasers, pepper spray, etc.—would have done the trick.

The Proposed Law Would Impose New Affirmative Duties on Officers

The proposed legislation would also impose new affirmative duties on officers before they can use deadly force or if they witness an unjustified use of force.

The current deadly-force statute provides that, where feasible, officers should give a verbal warning prior to using deadly force. The new legislation would significantly build on that suggestion by, first of all, requiring warnings instead of merely suggesting them. It would also require that the warning identify the speaker as a police officer and clearly warn of the intent to use a firearm or other physical force. The warning must also be given “with sufficient time for the warning to be observed and followed” unless doing so would place the officer or someone else “at risk of imminent serious bodily injury or death.” This proposal to require, rather than suggest, warnings when feasible is in accordance with established constitutional law.  See Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1174 (10th Cir. 2020) (“The Supreme Court has held that where feasible, some warning must be given before an officer may constitutionally use deadly force against a suspect threatening to inflict serious physical harm.” (emphasis added) (cleaned up)). But the proposed law specifies that the use of deadly force would be unlawful if an officer fails to comply with the duty to warn.

The proposed legislation would also impose a new duty to deescalate a situation, if feasible, prior to using deadly force. At present, an affirmative duty to deescalate is not present in either statutory or constitutional law see generally Kisela v. Hughes, 138 S. Ct. 1148 (finding no clearly established constitutional violation where officers shot a woman holding a knife after she had been commanded to drop it); see also id. at 1156 (Sotomayor, J., dissenting) (noting that the shooting officer “immediately and unilaterally escalated the situation” and did not attempt “less dangerous methods to deescalate the situation” before firing), although courts may consider whether officers escalate a situation and create the need for the use of force, see Bond v. City of Tahlequah, Oklahoma, 981 F.3d 808, 826 (10th Cir. 2020) (holding that officers were not entitled to qualified immunity where it is alleged that they “recklessly or deliberately escalate[d] the situation”). In any case, under the proposed law, the failure to deescalate where feasible would render use of deadly force unjustified, making the officer criminally liable.

Lastly, the proposed legislation would impose on officers a duty to intervene if they witness another officer using excessive force or knowingly violating departmental policy or state law. Failure to intervene under such circumstances would result in officers being reported to the Peace Officer Standards and Training Division and facing possible censure or suspension of their police officer certification. Although it is easy to see how this duty would apply in some particularly infamous circumstances—for example, the three officers facing criminal charges after they stood by during the killing of George Floyd—it is notable that this duty would apply to any degree of illegal force witnessed by another officer, not just deadly force.

Other Proposed Limitations on the Use of Force

In addition to modifying the governing standards that could justify the use of deadly force, Rep. Birkeland’s proposed legislation also explicitly describes certain situations where various degrees of force are not justified.

First, under the proposal, an officer could not “employ physical force, including non-lethal force, against an individual if the individual is already subdued and under the physical control of a peace officer or fully cooperating with a peace officer’s commands.” I imagine that this subsection is targeted at officers who physically abuse already restrained suspects (for example, see two Indiana officers under federal indictment for allegedly beating a handcuffed suspect). However, it is unclear how the proposed language might apply in other situations. For example, the bill would forbid “non-lethal force” against persons fully cooperating with police commands.  But “non-lethal force” covers a wide range of activity, and that language could plausibly apply to routine police activities such as handcuffing compliant suspects in the course of an arrest. See Muehler v. Mena, 544 U.S. 93, 99 (2005) (holding that officers’ “use of force in the form of handcuffs” was reasonable under the circumstances); see also Sebastian v. Ortiz, 918 F.3d 1301, 1306 (11th Cir. 2019) (explaining “that a typical arrest involves some fore and injury” (cleaned up)). If passed without modification, I imagine what qualifies as “physical force” under certain conditions could become a question for the courts.

Second, under the proposed law, use of deadly force would not be justified if “another officer gave conflicting commands to the individual who was killed at the time the force was used which would cause a reasonable individual to be confused about which commands to follow.” Under such a rule, if an individual received conflicting commands of “don’t move” and “show me your hands,” the officer giving the first instruction could not rely on the suspect’s obeying the second instruction in justifying the killing of the suspect. One thing I will note, however, is that the language limits the subsection’s applicability to situations where an individual is “killed” by deadly force, despite the fact that the use of deadly force can sometimes result in only grievous bodily harm or even less serious injuries. It is therefore unclear how this subsection would apply to situations where an officer uses deadly force in the presence of conflicting commands, but the force does not result in death.

Third, the use of deadly force would not be justified if “an individual was killed due to the criminally negligent conduct of the officer, including situations in which the victim is an individual other than the individual that the officer was seeking to arrest, retain in custody, or defend against.” One can envision situations where an officer might be entitled to use deadly force against a suspect but do so in an absolutely absurd manner.  For example, an officer might, in a vacuum, justifiably shoot a fleeing spree killer.  However, if that killer ran into a crowd of other people, it would be patently unreasonable for the officer to open fire as the suspect escapes into a crowd of innocent bystanders. This proposal appears aimed at similar situations, opening up to criminal liability officers who kill third parties while grossly deviating from what a reasonable officer would have done in the same situation. This would again raise the standard governing use of deadly force above that required under constitutional law, which imposes no liability where force is appropriately aimed at a suspect but an innocent bystander is harmed instead.  Milstead v. Kibler, 243 F.3d 157, 163–64 (4th Cir. 2011).

The Proposed Bill Would Have No Immediate Impact on Federal Civil Rights Litigation

Although Rep. Birkeland’s proposed legislation includes many of the elements currently sought by police-reform activists, it is unlikely that it would have any noticeable impact on federal civil rights litigation.

Most litigation surrounding police use of force takes place under the umbrella of 42 United States Code Section 1983. That section provides a federal cause of action for plaintiffs who allege that their rights under the United States Constitution have been violated. Because civil rights litigation focuses on federal constitutional rights, the fact that a use of force may have violated state law “is irrelevant so long as the standards developed under the Federal Constitution were not offended.” Swanson v. Town of Mountain View, Colo., 577 F.3d 1196, 1201 (10th Cir. 2009).

Even though Rep. Birkeland’s proposed legislation could open up officers to new criminal liability under certain conditions, it would not bestow individuals subjected to police force with new rights under the United States Constitution. Under such circumstances, it is possible that an officer could be charged with and convicted of murder under state law but face no civil liability under Section 1983.

Taylor P. Kordsiemon