Unreasonable deadly force can be unreasonably precipitated by officers such that summary judgment should be denied. Hastings v. Barnes, 252 Fed. Appx. 197 (10th Cir. 2007)* (unpublished):
Deadly force is reasonable under the Fourth Amendment if a reasonable officer in the defendant's position would have had probable cause to believe there was a threat of serious physical harm to himself or others. Jiron, 392 F.3d at 415; see also Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Therefore, an officer's use of deadly force in self-defense is not unreasonable under the Fourth Amendment. Romero v. Bd. of County Comm'rs of the County of Lake, Colo., 60 F.3d 702, 704 (10th Cir. 1995).
At the moment of the shooting, Todd was advancing toward Barnes and Davis with the sword. Thus, when Barnes and Davis shot Todd, they were acting in self-defense and, viewed in isolation, the shooting was objectively reasonable under the Fourth Amendment. Hastings does not dispute this conclusion. Rather, he argues Barnes and Davis' actions preceding the shooting precipitated their need to use deadly force, thereby rendering their use of such force unreasonable.
The reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment they used force but also on whether the officers' own conduct during the seizure unreasonably created the need to use such force. Jiron, 392 F.3d at 415; see Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001); Allen v. Muskogee, Okla., 119 F.3d 837, 840 (10th Cir. 1997); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir. 1995). However, only reckless and deliberate conduct that is immediately connected to the seizure will be considered. Medina, 252 F.3d at 1132. In other words, mere negligent conduct or conduct attenuated by time or intervening events is not to be considered. Sevier, 60 F.3d at 699 n.8.
Our review of the record convinces us that whether Barnes and Davis' actions unreasonably precipitated their need to use deadly force calls for a jury determination. But, viewing the facts in the light most favorable to Hastings, a constitutional violation occurred. Todd was not a criminal suspect. He was a potentially mentally ill/emotionally disturbed individual who was contemplating suicide and had called for help. Rather than attempt to help Todd, Barnes and Davis crowded themselves in Todd's doorway (leaving no room for retreat), issued loud and forceful commands at him and pepper-sprayed him, causing him to become even more distressed. 8 At the time they pepper-sprayed him, Todd was not verbally or physically threatening them. At least one of the officers heard Todd say "'help me'" or "'they are coming to get me.'" (R. App. at 210.) Although Todd had a sword, his stance, at least up until the time he was pepper-sprayed, was defensive not aggressive, posing no threat to anyone but himself. A reasonable jury could find that under these facts Barnes and Davis' actions unreasonably escalated the situation to the point deadly force was required.
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