Police Use of Force and the 4th Amendment

There are some common concerns expressed about the Pretti shooting, one being that it was an “execution.” Additional concerns include officers having no justification in shooting because there is a belief Pretti was completely unarmed and harmless, and he being shot in the back is exceptionally egregious.

Let’s review the standard and then delve into case law for legal analysis.

The use of deadly force by a law enforcement officer (government) constitutes the ultimate 4th Amendment seizure. When I first heard this, it did not make sense. Life or quality of life may be taken when deadly force is used. No property seizure can match that. This is a 4th Amendment issue, and our answers to the main questions of this discussion are grounded in that amendment and supporting case law. Not case law and supporting amendment. The Constitution is the supreme law of the land, not a mere document of support (a rant for another day).

The Fourth Amendment states verbatim-
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

So, this establishes that deadly force (a government seizure) requires probable cause. The standard for deadly force is the perception that there is an immediate threat of death or serious bodily injury to self or another. Not that I might get a little hurt, or I might be killed eventually, but specifically, immediate death or serious bodily injury. That perception meets the probable cause standard; it is immediate and real – without doubt. In fact, that is a higher standard than probable cause.

Graham v. Connor (1989) established objective reasonableness. The force is judged from the perspective of a reasonable officer on the scene, not with the benefit of hindsight. It isn’t certain, but it is reasonable. If another officer is shooting, it is understood that they are meeting the criteria for deadly force. The totality of the circumstances is considered by the additional officer to evaluate.

Tennessee v. Garner (1985) establishes that deadly force is permitted when the suspect poses a significant threat of death or serious bodily harm, as we outlined above. This calls to Graham for reasonableness in the decision without perfect knowledge of what is occurring.

There is a void in the information and our understanding of what occurred in the microseconds before the first shot was fired with Pretti. We do not know what was perceived as a threat, or whether any threat was perceived. People carrying a second firearm or additional weapons are not unheard of, so without any further clarifying information, anything is possible. I will not assume either way. As of now, all information shared about it is speculative. We do not know the stimulus for the shooting. To claim to know is a lie, unless they have inside info.

Side note: Someone shooting another with a firearm is considered deadly force. This includes someone shooting another with a shotgun loaded with rock salt. You can’t only “shoot someone a little” to minimize effects. Intent, like only wanting to wound or scare, does not matter- it is still deadly force.

In a prior post, I discussed the concept of contagious gunfire, which basically is officers joining in the gunfire somewhat mindlessly because someone else is shooting. Let’s look into the concept of an officer intentionally shooting in good faith due to the belief that another officer perceives a deadly threat. This framework is based on the Fourth Amendment as the foundation, and the following case law helps fortify the actions.

United States v. Hensley (1985) established that Officers may rely on information or actions of other officers so long as the originating officer’s actions were lawful. Officers are not required to independently verify every fact in rapidly evolving situations.

White v. Pauly (2017) had an Officer arriving late to a chaotic scene and shot after another officer had already fired. The Supreme Court emphasized that officers do not need perfect information or understanding. Officers may rely on what other officers reasonably appear to be reacting to.

Thompson v. Hubbard (2001) recognized that an officer may rely on another officer’s assessment of danger. The court held it was reasonable for an officer to fire when a fellow officer fired. The situation involved an apparent imminent threat, and there was no time to conduct an independent reassessment.

So, the key is reasonableness in the moment, not based on later discovery (without hindsight – there is a pattern here). There is also a factor of actions being done in good faith, not malice.

Some major considerations courts take when an officer uses deadly force based on taking a cue from officers on scene, but not seeing the imminent or deadly threat for themselves, are basically reinforcing the concept of reasonableness:
-There is an objectively reasonable perception of an imminent deadly threat.
-The officer is reacting in real time.
-The officer’s action is deliberate.
-The other officer’s actions or communications indicate deadly danger.
-There is no realistic opportunity to pause and independently verify.

What does not pass the smell test:
-Shooting solely because another officer fired.
-Blind “contagious shooting” without a perceivable threat.
-Continuing to shoot once the threat is clearly over.

Now, let’s consider all of the above in contrast to the idea that shooting someone in the back makes this much worse. If the standard is met for deadly force, the location of where the subject is shot is immaterial. Further, using the examples above about additional officer(s) shooting without perceiving the immediate deadly threat, the areas available for them to shoot on the subject’s body are also immaterial.

What does it mean if the agents’ actions did not meet these standards? Their actions were unlawful. It is that simple.

The underlying factor in all of this is reasonableness. Obviously, there are people who watch the videos and do not find the agents’ actions reasonable. We have all watched the incident unfold from a few angles with hindsight, but also without all the facts.