Fair Warning, Take 2: When Is It Feasible to Give Some Warning Before Using Lethal Force Against a Suspect?

I've gotten some good feedback and questions in response to my post yesterday regarding the shooting of Walter Scott. The point of that post was to note that, even if it was otherwise reasonable for the officer to shoot Scott, this use of lethal force was still unreasonable if (1) the officer failed to give a warning prior to shooting; and (2) such a warning was feasible. The main question I have gotten is: When is such a warning not feasible?

Let's take a look at the opinion of the United States District Court for the District of Arizona in Hulstedt v. City of Scottsdale, 884 F.Supp.2d 972 (D. Ariz. 2012).

In Hulstedt, police responded to a 911 call by David Hulstedt. Eventually, a standoff ensued and a SWAT team was called in. During this standoff, Hulstedt picked up his two year-old daughter, D.H., prompting Sergeants Slavin and Dorer to fatally shoot him in the back.

Neither Sgt. Slavin nor Sgt. Dorer warned David that they would shoot him if he did not comply with their commands, and both of them shot him in the back as he was walking away from them and towards the house....Sgt. Dorer, when asked if he ever perceived at any particular moment that David was going to "pile-drive" D.H., responded, "I did not."...Instead, he shot David “to prevent him from going back into the house.”...When David was shot, he released D.H. as he collapsed and she fell forward onto the concrete walkway from a height of approximately six feet.

Hulstedt's family thereafter brought a variety of claims against the City of Scottsdale, the sergeants, and other defendants. The family then moved for summary judgment against the sergeants and was successful. According to the court,

Even had the shooting been otherwise justified, both officers fired without issuing a warning although such a warning was "feasible," which alone would merit summary judgment in favor of Plaintiffs....Even when using a firearm is justified, "whenever practicable, a warning must be given before deadly force is employed."...Defendants have claimed that Sgt. Slavin's order to "put that child down," issued seconds before he shot David, qualified as a warning that he would use deadly force if David did not comply....The plain language of Garner and Harris, in addition to clearly established Ninth Circuit law, do not support that argument....

No warning was issued. A warning is not required when it is not "feasible," but the Ninth Circuit has held that this exception “contemplates a narrow class of cases, such as where the suspect has opened fire, or pointed a gun at vulnerable targets."...It has further held that "[v]erbal warnings are not feasible when lives are in immediate danger and every second matters."...When a suspect does not pose an immediate threat to the lives of officers or others, a warning is feasible....

Defendants do not argue that it was not feasible to issue a warning. As noted above, eight seconds before he was shot, David calmly raised D.H. above his head and walked forward, then turned around. He took no sudden action in this period that suggests warning him would not have been feasible or practicable. The officers were in no danger. As discussed above, the video confirms that any danger that David would throw the girl to the ground was not immediate. Both officers shot David in the back without warning him that they were about to use deadly force. Even were the shootings otherwise reasonable, Plaintiffs would be entitled to summary judgment based solely on the fact that the officers used deadly force without issuing warnings.

-CM