When is Police Use of Deadly Force Reasonable?

Whenever police use deadly force, there will be an issue of whether such force was unlawfully excessive. We receive many phone calls asking about this. This article seeks to clarify the answer for those with such questions.

For anyone in California, California law permits the use of deadly force in self-defense or in the defense of others if the person claiming the defense actually and reasonably believed that he or others were in imminent danger of great bodily injury or death. Penal Code § 197; CALCRIM No. 505; see also People v. Randle (2005) 35 Cal. 4th 987, 994 (overruled on another ground in People v. Chun (2009) 45 Cal. 4th 1172, 1201); People v. Humphrey (1996) 13 Cal. 4th 1073, 1082.

Unlike private citizens, police officers act under the color of authority to protect the public. Their authority extends to public offenses that pose an immediate danger to persons. Penal Code § 830.1(a)(3).

In determining whether a police officer’s use of deadly force was reasonable in a specific situation, it is helpful to keep in mind the objective standard of reasonableness used in civil actions alleging Fourth Amendment violations. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” Graham v. Connor (1989) 490 U.S. 386, 396-397.

In protecting oneself or another, a person may use all the force that he or she reasonably believes is necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury that appears to be imminent.

CALCRIM No. 3470. If the person’s belief was reasonable, the danger does not need to have actually existed. Id.

Turning to a police officer, an officer may use reasonable force to effect an arrest, prevent escape, or overcome resistance of a person the officer believes has committed a crime. Penal Code § 835a. An officer “may use all the force that appears to him to be necessary to overcome all resistance, even to the taking of life; [an officer is justified in taking a life if] the resistance [is] such as appears to the officer likely to inflict great bodily injury upon himself or those acting with him.” People v. Mehserle (2012) 206 Cal. App. 4th 1125, 1146.

California law permits the use of deadly force by police officers when necessary to effect the arrest of a person who has committed a forcible and atrocious felony which threatens death or serious bodily harm. People v. Ceballos (1974) 12 Cal.3d 470, 477-484. Forcible and atrocious crimes are those crimes whose character and manner reasonably create a fear of death or serious bodily injury. Id. at 479.

An officer has “probable cause” in this context when he knows facts which would “persuade someone of reasonable caution that the other person is going to cause serious physical harm to another.” CALCRIM No. 507. When acting under Penal Code § 196 (allowing an officer to kill), the officer may use only so much force as a reasonable person would find necessary under the circumstances. Mehserle, supra, at 1147. An officer may only resort to the use of deadly force when the resistance to compliance or arrest “appears to the officer more likely to inflict great bodily injury on himself or those acting with him.” Id. at 1146; quoting People v. Bond (1910) 13 Cal. App. 175, 189-190. In the context of a police officer being charged with murder, the prosecution has the burden of proving beyond a reasonable doubt that a killing was not justified. CALCRIM Nos. 505, 507.

“Where the peril is swift and imminent and the necessity for action immediate, the law does not weigh in too nice scales the conduct of the assailed and say he shall not be justified in killing because he might have resorted to other means to secure his safety.” People v. Collins (1961) 189 Cal. App. 2d 575, 589.

However, before a jury can rely on circumstantial evidence to find an officer guilty, the jury must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the accused person is guilty. “If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” CALCRIM No. 224.