En route to a mental health treatment facility, Joshua Blough got out of his fiancée’s vehicle holding his knife, walked through traffic, and wandered into a residential neighborhood. When he ignored his fiancée’s repeated pleas to get back in the car, police officers intervened. After he refused commands to drop the knife, the officers fired three shots, killing Blough.
These are the opening lines of an important new case by the United States Court of Appeals for the Sixth Circuit, Reich v. City of Elizabethtown. What are the obligations of a police officer to refrain from using force when the suspect is mentally ill?
Blough had attempted suicide three times in the last two weeks and was having hallucinations. He was also high on methamphetamine. While his fiancée drove him to a facility for help, he became agitated when he saw police and eventually got out of the car with a three-inch knife, saying that he wouldn’t let anyone hurt them. The fiancée called 911, and told the dispatcher that Blough had “schizophrenia real bad,” had not been taking his medication, had a knife, and thought “everybody [was] out to get him.”
Eventually, the fiancée and two officers found Blough. The officers let the fiancée ask Blough to put the knife down and get back into the car. He said no ten times. The officers then took over, and ordered the fiancée out of the way and used command voice to tell Blough to drop the knife. Although there was some dispute about the exact details, Blough instead moved towards the officers with the knife, saying “you’re going to have to kill me.”
The officers fired, killing Blough. Can his fiancée recover for unreasonable use of force by the officers?
Two of three judges on the panel said no. The majority measured the use of deadly force with this question in mind: was the use of deadly force objectively reasonable given that the officers had probable cause to believe that the suspect poses a threat of serious physical harm….” Tennessee v. Garner, 471 U.S. 1, 11 (1985); see Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017); Williams v. City of Grosse Pointe Park, 496 F.3d 482, 487 (6th Cir. 2007).
The Court reaffirmed several important tenets of recent jurisprudence in this area. First, the Court gave deference to the point of view of the officers. The Court looked at “ the severity of the crime at issue,  whether the suspect poses an immediate threat to the safety of the officers or others, and  whether he is actively resisting arrest or attempting to evade arrest by flight. Id. at 396; see Garner, 471 U.S. at 8–9.” The Court acknowledged that police officers routinely face “tense, uncertain, and rapidly evolving” situations that force split-second judgments about the degree of force required; our calculus must account for that fact. Graham, 490 U.S. at 396–97. So the Court evaluated the force used through the eyes of a reasonable officer at the scene, not with “the 20/20 vision of hindsight.” Id. at 397; see Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (“This standard contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force that is necessary” in a particular situation.).
Second, the Court looked at segments of the action to determine whether the force used was reasonable based upon what was happening at that moment. This approach requires the Court to evaluate the use of force by focusing “on the ‘split-second judgment’ made immediately before the officer used allegedly excessive force,” not on the poor planning or bad tactics that might have “created the circumstances” that led to the use of force. Lubelan, 476 F.3d at 407 (quoting Dickerson, 101 F.3d at 1161); see Rucinski v. City of Oakland, 655 F. App’x 338, 342 (6th Cir. 2015) (“[W]e are required to . . . focus on the moments immediately preceding th[e] use of force[.]”).
Third, the Court did not give credit to the argument that the officers somehow created the situation by pursuing and initiating contact with Blough. They are judged on how they responded to the last segment, when Blough refused to put down the knife, stepped toward the officers, and said they would have to kill him. See City and Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (“[Plaintiff] cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.”) (internal quotation marks omitted).
Hence, the majority agreed with the lower court that the officers have qualified immunity, stopping just short of saying that the conduct was constitutional, instead saying that it was not clearly unconstitutional: “Even were we to find a constitutional violation, Reich has failed to show that the unlawfulness of the officers’ conduct was clearly established at the time. Wesby, 138 S. Ct. at 589. To be ‘clearly established,’ the law must have been ‘sufficiently clear’ such that “every ‘reasonable official would understand that what he is doing’ is unlawful.” Id. (internal quotation marks omitted).”
The dissent would have found that there were issues of fact. Judge Nelson Moore would have credited an affidavit from the fiancée after her deposition. In her deposition, she said she had no idea how far away Blough was from the officers when he was shot. The affidavit described her going to the scene to recreate the shooting and measuring the distances she then recalled. The dissent would have given more credit to the fiancée’s account, alone among the witnesses, that Blough was far away and turning to leave when he was shot. Such a case was decided by the Sixth Circuit in Sova v. City of Mt. Pleasant, 142 F.3d 898 (6th Cir. 1998), and relied upon recently by the Sixth Circuit in Studdard v. Shelby County, 934 F.3d 478 (6th Cir. 2019), petition for cert. filed, No. 19-609 (Nov. 12, 2019). Therefore, according to the dissent, a reasonable jury could find that the actions of the officers violated clearly established law: don’t shoot people with a knife if they are not a threat to you because they are far away and moving still farther away.
The case is a lesson in the power of the record. The defense first convinced the majority of the facts in the record that a jury should be allowed to credit, and these facts should not include the fiancée’s late affidavit and solo view that Blough was starting to move away. The dissent makes a strong argument that juries, not judges, get to decide whether to believe those facts, and if believed, the officers could be liable. The dissent also notes the criticism of qualified immunity as a useful divining rod for police liability, citing ideologically varied sources from Justices Sotomayor to Thomas.
 No. 18-6296, decided December 19, 2019.