Episode Transcript
Hello, everybody, and welcome to the next edition of the Guardian Mindset Podcast. I'm attorney Eric Daigle, the principal of Daigle Law Group. Now, listen, I know it's been a while since we had a podcast for you, but I got a good one for you today. Today's episode features Officer Created Jeopardy, recorded live at the Daigle Law Group 2025 Use of Force Summit. In this session, we examine how Officer Created Jeopardy is shaping the analysis of force, including how tactics and decision-making leading up to an incident impact reasonableness, accountability, and, of course, litigation. We'll look at where we've been, what's changing, and what agencies and trainers need to understand moving forward. Here's the full audio from that presentation.
The objectives for us today are to talk about this concept of Officer Created Jeopardy, but I want you to think about it, because you've heard about this before. Officer Created Jeopardy is nothing new. It's been around for a long time, but it's been very difficult for plaintiffs' attorneys to use it. but this now is becoming a hot topic issue, but I want you to think about it in a way that is actually going to progress the industry if we do this correctly. Trainers, you all spend hundreds of hours in your profession to give people capabilities, but what makes me upset is you don't hold them accountable to the capabilities that you gave them, right? And that's really what this is all about here. and the challenge for you as trainers, and I'm going to be very upfront with you, in the 90s, 2000, being a force instructor was awesome, right?
Everybody loved you. You were the guy that got extra rounds. You got extra mat time. Everybody wanted to be you. Now, there's a new part of being an instructor that's coming with it, and that's the accountability piece, which means that when I'm doing an internal affairs investigation or a force investigation on force, I'm sitting the trainer down and saying, hey "Hey, did you train them to do that?" That's an interesting question, right? And by the way, we're also talking about individuals.
let's just say over the last decade, we may have lowered our standards a little bit. We may have hired people that we shouldn't have hired, and now you're responsible for making them successful, but success can only go so far, right? Skill set is a skill set. When we talk about the concept of police created jeopardy, what I'm talking about is you and your agencies need to make sure your people are following the training that you're giving them. because we have spent all of this time in de-escalation and mental health response and CIT training and all of this, and then they go out and they don't do it. What do you think the question is going to be at trial? What were you trained?
Were you trained to do this? And did you do it? It's a simple concept that's actually getting some traction now, which causes me some challenges. We're going to talk a little bit about Barnes, and we're going to get into some of the cases after that, that applies. So the focus that we want to look at here is, in order to turn this ship in the analysis of force and really focus on getting our employees' confidence back and decision-making and getting those individuals to say, you're under arrest" in a reasonable time, making someone under arrest, is to understand that we have to make a system that works uniformly on all parts of it. and that's where officer created jeopardy comes into play. That's where for a long time, for years, and some departments are better than others, and you'll have to evaluate your own.
you know, the training aspect is good, but the accountability aspect is not holding people accountable to their training. Why are we wasting money training if we're not going to follow through with the training? And now what the challenge is in this area is that the lawyers have figured out to attack the training, and they are attacking the training at all levels. I will say to you as training officers, you know, the days are over where you just get to put a lesson plan cover sheet in the file and call it a day. Those days are over. Your full PowerPoints better be saved. Your class should even be recorded.
Like, they're coming for every bit of it. In the years that, in the 30 years I've been doing this, the 25 years I've been doing this, the key aspect is they didn't know what questions to ask early on, and they're getting better at it. So when we talk about the concept of officer jeopardy, we're talking about a definition of this. Deliberately or recklessly escalating a situation in moments leading up to the effectuation of an arrest, officers affirmatively creating or passively accepting unjustifiable risks or threats that could have and should have been avoided in a manner in describing an unjustifiable risk taking that can result in officers using force to protect themselves from a threat that they were in part responsible for creating, right? This is where our failures come into play. It's a simple concept in which we, when we talk about it in its simplest form, you know, hey, we teach felony stops at the academy, right? Sure, we teach felony stops, but in the reality of a pursuit, in the end of a pursuit of a felony of a stolen vehicle, what occurs?
They run up to the car. Well, why did we teach them to do that? No, and by the way, I'm teaching this class, and I'd probably do the same thing. It's the skill set of us being able to focus on this application. So this comes to a head in a history leading up to Barnes versus Felix, and there's two cases in the Supreme Court that have led to led to Barnes versus Felix, where the Supreme Court already showed us their cards. and the one of the best ones that I encourage all of you to pay attention to is a 2015 case that I've been teaching forever. and by the way, those of you in the audience who are tactical team members, and if you've been in the tactical team for long enough, you know somewhere around 2015, some big bad dude said, you can't, we're not tactical teams to barricaded subjects holding themselves hostage."
All right, we stopped. we stopped the tactical application to where there was no threat when it was self-contained. Now, by the way, the guy that initiated that is standing right here, and the reality of that was because of this case. Teresa Sheehan, and what I want you to pay attention to, because I think it's very important when you teach your officers that you might want to go through this case with them. We got a write-up of the case on the DLG Learning Center, but what I want you to focus on is what happened in this case. So, Teresa Sheehan is living in a mental health boarding house, a residential living facility. Any of you have those?
You've heard me say this for a couple years now, right? By the way, when you get called to that house, do you know where you're going? Yeah. What's the difference? And this is because we've done this case for a couple years, but what's the difference? Well, in 1990, when we got called to this house, we hit it hard, rolled in hot, ducked out of the car, rolled in the front door, left with a body. That's it.
What's the difference today? Today, I'm hoping that there's a sergeant out there who says, hey hold on, guys. We've been here before. Do me a favor.
Pull up a block away. Let's have a discussion," right? Hey, you got lethal cover. I got less lethal. This is what you got. This is what we're going to do. This is how we're going to do it, right?
What's the difference in two decades? The difference is, running and gunning, there was no thinking. There was no planning. There was no evaluation. And where we're better now is where we take a second and go, hey hold on a second." So to make this case, for those of you who've never heard of it, and a lot of you have heard of it before, but to deal with it, those of you that haven't, Teresa Sheehan is in her residential room. She has not taken her medication.
The people that work there want Teresa to go to the hospital. She has not taken her medication. So they go into her room. Her room's like a cell, eight by 10, bed, desk. They say, hey Teresa, you got to go to the hospital. You're not taking your medication." She says, "I don't want to do that."
And she jumps up with a knife in her hand. They leave the room.
Who do they call? And not Superman, by the way. They call law enforcement.
San Francisco PD responds. To make a long story short, they go back in the room and she's on her bed, a book on her face. And they say, hey Teresa, San Francisco PD, we're just here to help. We want to take you to the hospital." She jumps off the bed with a knife in her hand.
Officers run out. They back out. They shut the door.
What do we have? We have a barricaded subject holding herself hostage. Okay. What do we do? Well, I'm asking you that question today in 2025, but I've been asking that question for 10 years. And 10 years ago, the response was much different than the response I get today. When this first case came out and I would say, what do we do?"
Everyone's like, "I got shit to do. Kick this door. Let's go. We got stuff to do." Today, people would look at me and say, we're going to call a negotiator." Or we even get to as far as saying, this is not our problem. Deuces. Have a great day."
That's a big difference in a decade. The difference in the spring from kicking in the door at all costs, which is what they did in this case. They kicked in the door and, and Teresa had a knife. They came at the officers. The officers shot Teresa. And when the lawsuit was filed, what made this case the starting point of this discussion is the lawyer didn't make a mess out of this case. A lot of times plaintiff's attorneys make a mess out of cases.
They just throw a bunch of crap at the wall to see what sticks. They didn't do that here. They actually did it a little better. This attorney, by the way, this attorney should have won. And I want you to think about this because I remind you every year until the Supreme court does it again, which is going to be next year, in my opinion. But remember, every case that goes to the Supreme court goes with a question. This case had a question. No different.
Here's the question. The question is, under the ADA, should police be required to provide Teresa or an individual who's suffering from mental health issues? Should they be required to provide her an accommodation before using force? Think about that for a second. Should we require to provide someone we know is mentally ill an accommodation before using force? Now, when this first kid, when this case first went up, I was like, what does that mean? What the hell is an accommodation?
And how do we do that?" I'll understand. I remember this case going up and saying, if the court comes back and says, yes, what do we do? How do we address this? How do we provide an accommodation to somebody who's in crisis before using force?" By the way, interestingly, let's look at this 10 years later. Isn't what we do now providing an accommodation?
Don't we deescalate and use CIT training and use different types of weaponry? Aren't we providing an accommodation? So this issue is going to go back to the Supreme court again. I'm surprised it hasn't, especially with the number of mental health use of force cases we have. but here, the officers kick the door in and shot Teresa seven times. And in the case leading up, the attorney just asked a very specific question. What training did you have dealing with mentally ill individuals?
Now remember one thing in this case. the people working, the officers responding to the mental health case, they can't argue. I didn't know she had mental health issues. They knew where they were going, right? They've had calls for service there multiple times. So they're like, well uh, what, what training did you have to deal with someone in crisis?" And they said, well we're CIT trained." Great. Awesome. What does, what did you learn?
What did you learn? Oh, we learned like, you know, talk softly and, and, and don't be antagonistic and give them their space. And, and guess what the next question the lawyer asked was? did you do any of that? That's the number. That's the question I want you to start thinking about. Did you do any of the things that we trained you to do?
And obviously, the officers came back and said, no "No." Now, good thing here is that the Supreme court didn't want to deal with this. So it did the Heisman and made it go away. You've all heard me say that. So let's take it to the next level. Cause the court said in Sheehan versus San Francisco, the court said in determining Hilda and determining whether the officer's second entry into the petitioner's room contributed to the use of deadly force was a factual issue for the jury to decide rather than a legal question for the court to resolve regarding reasonableness. So the court passed it off, said, we're not dealing with it."
County of Los Angeles versus Mendez. That is called the provocation rule. And a lot of you in the California will remember back in 2015, 2017, California had a. Rule called the provocation rule What the provocation, rule said was this. In a situation where there was a use of force, if the use of force was preceded by a constitutional deprivation. There the use of force could never. be okay. Right. What they said was this.
So Mr Mendez. He is wanted.
He has a The cops go to his mother's house to search his mother's house. They they search. the house.
They can't find him. They're gathering in. the backyard There's a couple of outbuildings or sheds. in the backyard. They see an extension cord going from the house to the shed, They're like, oh, that's weird. They go, they follow. the extension cord to the shed At the shed, there's an air conditioning in.
the shed, It's running. They're like, oh, that's weird.
And they walk. an officer walks into the shed, And when he walks into. the shed Mr Mendez is in there, pointing a rifle at him. The officer pulls, fires, kills Mr Mendez. In the California, the court says, well, hold on, a second. You crossed the threshold. to get into the shed, Right.
What was your basis to do that? What was your where was your reason to do that? What was your exception. Did you have a warrant? No. Okay. What was your exception to the warrant requirement to get?
over the threshold. I didn't have one. Great. So you got a fourth amendment constitutional deprivation. Great. That means the use of deadly force is wrong. It's excessive.
And the court says no, that's not the way we're going to do this. The Supreme Court threw out the provocation rule and said, yes, you might have a fourth amendment deprivation by entering the shed. but, the use of force needs to be evaluated independently in order to evaluate whether or not it was good. or not good. You can't attach it to something else, which leads to why we're here.
I think my computer. just doesn't like me. This we go to pre-seizure conduct. Okay. Now this is what I call the officer. officer created jeopardy application and the pre-seizure conduct. And it refers to specifically tactics. Right. That's how I want you.
you to think about it. Tactics actions taken by the officers prior to the point where force becomes necessary. Right. And the reason why we're here today and talking about this is because of Barnes versus Felix. Now I have a favor to ask you, and you will appreciate this, especially you. force investigators, especially you. force trainers.
I need you. to find an hour and 15 minutes at some point when you get out of here because you won't find. it here. We won't leave that for you. I promise. And that is this. you need to listen to the.
oral argument of Barnes versus Felix. And for those of you who were here last year, everything from this point. on is new. It's new because there is oral argument on Barnes versus Felix on January 14th 2025. Now I got to tell you, I listen to Supreme Court oral arguments a lot, and I've been admitted to the Supreme. Court for over a decade. And the Supreme Court oral arguments used to be 20 minutes long.
This one's an hour and 15 minutes and it is the best use of force oral argument I have ever heard to date. Here's the reason why. The court this is January 14th 2025. If you remember on January 4th. I'm sorry on. January 1st, New Year's morning, 2025, in New Orleans, there was the terrorist incident where the individual drove down the street and ran people over. Right now, the impact that that had on the Supreme Court just 14 days later.
you will hear in the oral argument. Because for the first time in the history of being, what you ask. of me to be which is to keep my fingers on the pulse of the law.
What I heard amazed. me, I heard Supreme Court justices, and you will hear them saying, hey, listen, we don't want to be so. strict to officers that they won't take action to stop that car. Think about that for a second. That's the words that were coming out of the Supreme Court justice's mouth. They were saying, listen, we have to seriously consider. what we're saying here, because if we become too over-calculated on our forced decision making, then the officers won't.
won't do what we need them to do, which is why you had the video you just had. They won't stop. that car driving down the street, because they don't want to shoot at a moving car.
We have to really. think this through. Now, the issue on the table in Barnes v. Felix is a split in the country. A split in the country where the 2nd 4th and 5th 5th and 8th Circuit was evaluating deadly force situations under. what they called the Moment of Threat Doctrine. The rest of the country, the 1st, the 3rd, the 6th.
the 7th, the 9th, the 10th, the 11th, and the DC Circuit were already following what's called the Totality of the Circumstances, Plus, Doctrine. So, let's separate these two doctrines.
First is Moment of Threat. The Moment of Threat Doctrine says. this Where a 4th Amendment violation occurred under the Moment of Threat Doctrine which evaluates reasonableness of the officer's actions. only in the narrow window when the officer's safety was threatened, not based on events that preceded the moment of. the threat. So what they're talking about in the Moment of Threat Analysis is that they're only going to look. at a very shallow window before the use of deadly force. Right. Okay. Well, then you have the Totality of.
the Circumstances application. The three the circuits reject the moment of the circuits that are listed above. they reject the. Moment of Threat Doctrine, and they go with the Totality of the Circumstances, which says Totality of the Circumstances approach. including evaluating the officer's actions leading up to the use of force. This is where we need to start opening. our eyes to this application.
They're saying we want to look at what occurs before the officer uses force. All right, so, why, how, did we get here? By the way, you're gonna listen to the oral argument, and it's. pretty clear. As soon as you're done listening to oral argument, we knew what the outcome. knew what the outcome was It was pretty clear from the questions the Supreme Court was asking that they were going to go with. the Totality of the Circumstances application, and here's the reason why.
The question presented is this. So, the case that. you can take back, and have a conversation about. Come on, stay with me. There we go.
A little slow. on the uptake is this? So the court in a case Barnes v Felix out of Texas has to. to evaluate, are they going to allow what the Fifth Circuit did, and how the Fifth Circuit evaluated this use of. force or are they going to assess whether an officer acted reasonably in using force. The court must consider all. the relevant circumstances including facts and events leading up to the climactic moment.
All right, so here's what happened: Officer Felix is on the Harris County Sheriff's Department. He's on patrol and Mr. Felix. I'm sorry, Mr. Barnes. Blows. I get my names right today at some point.
I promise Mr. Barnes blows the toll, and I guess he has. gone through the toll many times, not stopping for the toll. So, the toll calls on the radio to Officer. Felix gives them, gives him the make, model, and the license plate for the vehicle, and says that he. he has blown the toll. As you will see in the video in a second, the Officer Felix stops the vehicle.
and starts to interact with the driver Mr. Barnes. You can see in the video again. it's it's early video. so, it's a it's a car dash camera with audio, with the audio pack on the old school way, but the key part here was that you see the officer and hear the officer asking questions like hey, give me. your license or registration, and you can hear him start saying, stop.
rummaging around, stop. rummaging around, stop. rummaging around. to the point where the guy says, well, I think it's in my trunk, and he opens the trunk and and then finally the officer is like okay, he opens the door and the guy takes off and when the guy puts the car in drive. The officer steps up on the sill, goes for the ride, pulls his firearm. drops two rounds into the driver. So I encourage you, you can get this video online.
I would just love. you all to just play it for your officers and say okay, so what do we do with this A. lot of you who are force investigators in the room. I don't think any of us want this one. and because, it really, but this case has now gone up and down multiple times. I want to talk about. about with the ruling in this case.
So in the end, this is a unanimous 9-0 decision. 0 decision and the the the feel that you get from the case and the value of the case is that they are doing. so, to, to, reaffirm, and, they make a, they make a, a, a very intentional application in the Supreme Court. to focus on the fact that we are doing nothing different here. We are just reaffirming the framework that's already. been in place since 1985 and 1989, and this is a very important aspect to me. Why My interpretation as I said, is that the Supreme Court is in a 9-0 decision.
The one thing they can agree on. on is force is constitutional and the final evaluation of force should be based on federal law. That's that's my interpretation. of the one thing that nine Supreme Court justices can agree on. Now, what they say here is this. in the unanimous 9-0 decision clarified and reiterated several critical principles for assessing use of force deadly force cases. cases A police officer's use of deadly force violates the Fourth Amendment as we know when it is not objectively reasonable.
The inquiry into reasonableness requires the assessing of the totality of the circumstances. Far from creating a new framework, this opinion. our my opinion, and this is in the article that was written. The opinion reaffirms the foundational principles set forth. in Graham versus Connor, and Tennessee versus Garner, and clarifies that the Fifth Circuit's moment of threat application. threat application cannot displace the well-established totality of the circumstances. Approached, what the court talks about here, and this is this.
this is Justice Kagan, and his quote in this case says this. Today, we reject the approach. We reject that approach. the moment of threat analysis as improperly narrowing the requisite Fourth Amendment analysis. To assess whether an officer acted reasonably. In using force, a court must consider all the relevant circumstances, including facts and circumstances, facts and events leading up. to the climatic moment.
The court began by stating the question in a case like this one as the court. is often held, and again they're using language to make it like they want to make sure that they're tying. in 40 years of jurisprudence in this application. They come back and they said as this court is often held. is whether the force deployed was justified from the perspective of a reasonable officer on the scene, taking due account. of both individual interests and the governmental interests at stake. So we know that the evaluation of reasonableness under under.
the the Fourth Amendment application is the balancing test between governmental interests and privacy rights and they are they are. reaffirming that application. The court explained that the Fourth Amendment reasonableness inquiry requires assessment of the totality of the circumstances. The objective reasonableness of an officer's use of force demands careful attention to the facts and circumstances as known to. the officer. Now I want to I want to continue to say this so that hopefully it catches on, and the point is they are really focusing on officer, what did you know?
Did you know where were you going? Did you know? Have you had experience there. Had you had knowledge there? Do you know the person you're dealing? with You know because because what the court is saying is there's a dramatic difference between somebody that you one. of your officers just meets on the street where they have no knowledge, no background, no history, and getting sent.
to Teresa Sheehan's boarding house. Right, there's a big difference between those two things, and the court believes all of that is in play for the reasonableness. The decision emphasized that the totality of the circumstances inquiry is not bound.
by any time limit. Now here's the challenge. The issue for me is that I like guardrails. I like. like to be able to teach you guardrails so that you can teach your people guardrails right. I like to what. are the purpose of guardrails.
Guardrails are there to keep you on the street, whether you want to be on. the street or not. That's the purpose of guardrails, right? The concept that we're a little worried about with this. Is that now this opens up a door, and where we as trainers, instructors, command staff evaluating force has to. worry about is they've set no time limit. In fact, they'd even gone as far as to say there is.
no time limit. So what scares me a little bit as you can imagine is what did you know? what should you have known has no limit. right? You know. no one's saying how far back can we go. And that scares me a little bit.
Right, because if you're working in a department, you've been there for 20 years. you've dealt with this guy.
15 20 30 times. He's fought with police. You've arrested him for interfering.
interfering What do you know? Well, but by the way, what if he's found God and changed? you know. How much of that is relevant to today's world. The court says here, while circumstances existing at the instant. Force is used. can in law enforcement, in corrections, we've often put on, as the court here calls, chronological blinders.
We looked at the use of force at the moment the force occurred, without looking at what led up to the force. And what is becoming relevant now in that analysis is I'm seeing a lot of bad tactics. And I know you're not teaching them that. I know you're not teaching them these tactics, because some of these tactics are horrendous, horrendous. But the reality of that is that, are we holding them accountable to that tactics? By the way, can a use of force be justified with bad tactics? It's a great question.
One thing is sure is the use of force might be reasonable, but how about dealing with the tactical issue? How about dealing with the decision issue? How about dealing with the training issue? We were talking over dinner last night, and Spencer and Mike were talking about, guys that have had, have done questionable decision. Then we put them back in scenario-based training to see how they handle stressful interactions. And is it training or is it the person?
Is it something they can overcome? Or is it something that, maybe not. They got a malfunction. Let's just call it what it is, right? This job's not for everybody, right? And if you got a malfunction, then we pull it out. You gotta get rid of it.
But the court's looking at the fact that, and they say this, the question, now they avoid, the Supreme Court avoids and does the Heisman on the question of police-created jeopardy. They stop right at the door, which they basically say. The Fifth Circuit rule, the court says, Supreme Court says, put on chronological binders. By forcing judges to ignore anything that happened before Officer Felix stepped on the vehicle's doorstep or door sill. Now, all of us watching this case and my teams having discussions about this case, we knew one thing. We knew it was never gonna fly. And the reason it was never gonna fly is because the Fifth Circuit clearly said, we only evaluated three seconds before, three to five seconds before the shooting.
And we went, seriously, that's not enough. It's just not enough. We know it's not enough. So we need more than that. I don't know if we need 30 seconds or I don't know if we need a minute, but we definitely need more than three seconds, right? And the court said that restriction is irreconcilable with the totality of the circumstances analysis. The court concluded, because they're avoiding the jeopardy question, what they said was this, hey, you didn't ask us the question, so we're not gonna give you the answer because that's the way the Supreme Court works.
By the way, the Supreme Court does whatever the hell they wanna do. They're the Supreme Court. And so here, the 9-0 is not gonna agree on this, so they're not even gonna deal with it. The court concluded, the question presented to us was one of timing alone, whether to look only at the encounter's final two seconds or also to consider earlier events serving to put these seconds in context. Okay, so we're up to speed with the May 2025 Barnes decision. And the Barnes decision is something that you should take into account. So now I wanna talk to you about what's in the can right now.
There is a case that just heard oral argument. It's called Case v. Montana. It's a 2025 case. We're waiting for a slip opinion to come in the next couple of months. But the reason why I'm gonna give you these two cases, and thanks to the hard work of Adriana, who does a lot of my legal research on these issues and stays up to it, but the key part of this is that the courts are starting to use the Barnes analysis in other cases, which means that this Barnes analysis is going to become important. By the way, Case v.
Montana is not a use of force case. It is, well, it turns out to be a use of force case, and I'll tell you why, because somebody is alleging committing suicide, so they enter his residence to look for him.
They find him hiding in the closet. He jumps out and they shoot him. So it turns out to be a use of force case, but the issue on the table is, you may not have heard of this because the issue that's going to the Supreme Court right now is this question, whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency aid exception requires probable cause. So the issue before the Supreme Court right now is not the use of force in this case, but when using the emergency aid exception to enter a residence, should the information be at a reasonable suspicion level or a probable cause level? And you're like, Eric, what does this have to do with anything?
Well, that's what I'm saying. What does this have to do with anything? But guess what they start quoting in the oral argument? They start quoting Barnes. And I want you to hear how they're using Barnes to talk about the training and tactics of the officers. So in this case, as it comes up, there we go. So the facts here.
Situation many of you face often, and I give you kudos and credit for handling these situations. Girlfriend gets a 911 call. Individual says he's gonna commit suicide. He's got guns in the house. He's distraught. He even, they even hear a gunshot and the phone line stays open after the gunshot. The girlfriend thinking that he's killed himself calls 911.
Officers respond, and this is what I love, is in the 90s, how would we have done this? 90s, help me out, chief. We're just rolling right through the front door, right? Like, we got it. It's all good, hold my beer, right? But nowadays we're a little bit better. So they get there, they pause, they look around the house.
They see a holster. They see a bunch of bear cans through the window. They see a handgun holster on the table. They see a notepad. They try to make contact for 40 minutes inside. This is patrol, by the way. This is not, this is patrol.
It's not a tactical. They finally decide that they're gonna enter thinking that he's killed himself based on the information that the girlfriend shared, the shotgun round, the gunshot, and the open phone line. As they're searching the house, they go up to the upstairs closet. He's in an upstairs closet. He's holding a gun. The officer opens the door. He's pointing a gun at him.
The officer shoots him, kills him, all right? So he shoots him, and then he dies later. But he's arrested, and no, he does not die. I'm sorry. I'm getting my cases good today. Arrested and charged with a felony in this area. The next case, he dies.
So in this case, it starts with a motion to suppress the handgun. It's denied. It goes all the way to the Montana Supreme Court. It rejected the issue, and the case on the table is an emergency aid exception case. The Montana Supreme Court says this. Emergency aid exemption to warrant requirement necessitates probable cause of an emergency. The probable cause is redundant when police officers acting in the caretaker's capacity and the officer's reasons for a warrantless entry are totally divorced from the investigation of a crime.
So for all you instructors on search and seizure, this is what I would teach in search and seizure, which is they're not entering the house to search for evidence of a crime. They're entering the house to render aid and to make sure he's good. So it goes to the Supreme Court. The Supreme Court grants writ assertiory. Oral arguments are heard. The significance of this case is where I want to show you. So in the oral argument, the attorney says this.
In terms of the test of reasonableness, objective reasonableness is an easy test, but it may not be an easy rubrics to always apply where the court is taking the privacy interest versus the nature of the injury. I think the court just did this in Barnes. And then he goes off on a whole rant talking about Barnes, where he says, in Barnes, the court admitted that it's a fact-bound morass that demands careful attention to the facts and circumstances, including the facts and circumstances leading up to the clientic moment. The court has to consider all relevant circumstances. The attorney in his oral argument says this. I don't think that probable cause allows the sufficient flexibility and doesn't differentiate between going through a door and breaking down a window. Whereas Barnes standard and the reasonableness standard differentiates between the facts that make it reasonable to handcuff a suspect versus to tackle a suspect or to use deadly force.
Now, what's the takeaway from this? The point is, what we're waiting to see in the court's ruling on this Fourth Amendment search and seizure case is whether they're going to expand Barnes as the continued rule of reasonableness assessment. So they're doubling down on the facts and circumstances that lead to the situation. Here, they're not talking about the actual deadly force. They're talking about entering the residence. We saw it again in a case called E-Step versus the city of Nashville. And by the way, remember, Barnes only came out in May of this year.
So since May of this year, we have court of appeals cases and cases going to the Supreme Court, which are already interpreting Barnes. In E-Step versus the city of Nashville, here's one that you are going to want to pay attention to and the reason why I'm bringing this together in this application. So Mr. E-Step is on the highway and walking along the highway and a Tennessee highway trooper stops and he gets into, and this video is online, and he tells E-Step that he'll take him wherever he needs to, but he needs to pat him down first. And before he pats him down, like all of you would do, he says, hey, you got any knives on you? You got anything on you? And he says, yeah, I have a razor blade.
So he goes in his pocket and as he's taking out the razor blade, now Mr. E-Step controls the razor blade and steps away from the officer. And so the officer calls for backup and while he's waiting for backup, another officer is going another way. What this case is all about here is a case where the court looks at what's called gratuitous force. And they pull Barnes into this analysis, but what happens here is there are 10 officers, there's nine officers, and this continues on as you would expect. And at one point he turns, hands in his pocket and comes at the officers and eight of the nine officers fire. There's 30 rounds fired, 33 rounds fired, he's killed.
And the issue is not that. The issue is that as he falls to the ground and comes to the ground, falls to the ground, one officer who didn't fire in the first eight with the first eight, as he falls to the ground and is down, a ninth officer fires two rounds into him. That makes us all go, huh, right? So the issue is not in this situation, the eight officers with the multiple rounds. So the question presented to the Sixth Circuit was this, whether the officer's use of deadly force violated Mr. E-Step's Fourth Amendment rights, if so, whether the rights were clearly established so that qualified immunity should be denied. What this case does is it distinguishes reasonable split-second decision force facing an immediate threat versus unreasonable gratuitous force after the suspect was incapacitated.
Now, in a very long decision here in the analysis, in a very long decision, if I can get this to work again, come on, there we go. So the, as the guy, so first they were looking at the suspect's action, threat. He's pacing on the highway, shoulder, repeatedly ignoring the commands to drop the weapon, get on the ground. He took two quick steps towards the officers, grabbed an object from his pocket, pointed it at the officers. A knife-like object was in the individual's possession. Facts known to the officers. They knew that he had a weapon on him.
He never finished the pat down. The trooper never finished the pat down so he could have more weapons and he appeared to have something in his pocket. At the same time, when the officer charged, nine officers fired 33 shots.
12 struck him and killed him. We gotta worry about that for my firearms instructors, like front sight people, front sight. And the tactics at issue here was despite, so as the shooting is occurring, if you, let's play it through. All the officers, nine of them fire, I got that number wrong, nine fire. As the nine are firing, someone says, cease fire, cease fire. They cease fire and after cease fire is said and all other officers stop shooting, a one officer fires two rounds into Mr. Estep and falling on the ground as he's already on the ground.
What's the issue with that? Where's the immediate threat? Where's the imminent threat? Where's any threat, right? It's that threat's been addressed. And so as the court's looking at this, the US Court of Appeals looked at this and came out with some conclusions. First, they said the deadly force used by the initial eight officers was not excessive.
They gave all eight 33 rounds, good, all good. But the officer who fired lastly was alleged conduct shooting at suspect after a, if proven, constituted excessive force. Reasonable officer would have perceived that the suspect, who had fallen to the ground after being shot by other officers, no longer posed a threat. Now, the challenge here is what's going on? Obviously, we're going to spend three days in Dr. Paul Kavinsky, Kevin Dillon, are all going to talk about perception and analysis. And here, what I really liked about this case was that the court was very clear.
Eight are good, one is not. That's just the way it goes. Now, the analysis is, why is the one not? And how do we focus that in your analysis of incidents as it applies?
The court went to Barnes v. Felix and said this. We know the conclusion. I've said it three times now. I think that's the number that you're supposed to get to. Three times, the Supreme Court rejected the moment of threat rule, requiring courts to assess the totality, including earlier facts that informed an officer's perception. The Sixth Circuit leans on Barnes to avoid hyper-segmentation of a rapidly unfolding five-second volley.
Basically, what they're saying is, hey, we're good. We're going to put all those eight officers together.
We can accept that. While still recognizing that force initiated after incapacitation must be independently justified.
Relying on Barnes v. Felix, the court emphasized that excessive force analysis must consider the totality of the circumstances has no time limit and may consider earlier and later events as same encounter can render actions reasonable at first, but unreasonable as the encounter progresses. So here, they used Barnes, not in the lead up, but in the aftermath, right? They looked at it and said, okay, threats handled, threats incapacitated. We're good. This after action, this after two rounds, that's a problem. It was not in the evaluation, which makes a lot of us in the force world start to spin a little bit because decision-making timing analysis.
Yes, I want to know a little bit about why this officer took longer than everybody else to respond to the perceived threat. That's really what the situation is. Or is it come down to a confidence issue that he doesn't fire until he hears everybody else fire and says, okay, if they're doing it, I'm good. But that brain to trigger time is just a little too long in the application. And so he's not resolving the imminent threat in its application. E-STEP's refusal to obey commands, possession of a knife, possible additional weapon, movements towards officers, his gun-like pointing of an object showed active resistance and an immediate threat. By the way, this is what the court's looking for.
The court's looking for that documentation, that articulation, making their initial and brief continuing fire objectively reasonable despite the minor underlying offenses. This is another important part here where they tried to argue, well, he's jaywalking, he's on a highway. That's not a deadly force response. Like, well, of course it's not. But it can escalate as it did with a weapon proving to be a threat to the trooper and to the other officers on scene. The court says using Barnes totality framework together with Sixth Circuit precedent barring force against neutralized suspects. That's what they're focusing on.
Hey, it's over, so you gotta stop. Court concluded that every reasonable officer would know that beginning to shoot after the threat had clearly ended is unconstitutional. So Murphy lacked qualified immunity while the eight other officers did not. Now the point here that we're making is that I wanted to show you that within seven short months, the courts across the country are focusing on Barnes, totality of the circumstances, which means in your analysis, in what you do in your department, and after action reviewing of use of force, are you going, and if not, I need you to start doing this, are you going that one step further? Are you asking, are you looking at the tactics? What led up to the incident? What did they do?
What should they have done? What did they know? What should they have known? And that must be part of the analysis. Again, I will tell you, this is a concerning one for us in the aspect. What I am concerned about is, as I said, there's no time limit here. There's now the open question, which I don't know that the Supreme Court's going to take back to answer, which means it's going to bounce around the Court of Appeals for a good couple of years, if nothing, until there's some inconsistency.
But the one thing that is clear is that there is no time limit on this application. And the court even said, the Sixth Circuit even said, we're going to look at before and we're even going to look at after. So the time limit requirement, I look at my agencies and say, hey, where you should focus this is, if you're doing the force evaluation, if you're doing the force analysis and what has led up to the use of force, it calls into question some tactic that should not, or just doesn't look right to you. I'm going to call in my training guys and say, hey, what is this?
What do we do here? Do we do this? And is this what we're doing? Because that's what the court and that's what Justice Sotomayor is teaching the plaintiff's attorneys to ask the questions. Now, I'm seeing this in a lot of cases. Now, a lot of you as experts are probably seeing this. The plaintiff's attorneys are going in deeper now.
They're really pushing the discovery of training. They're really pushing the discovery and they're looking at policies that surround the use of force policy. So policies that I need you to keep on your radar to make sure that, yeah, every department should be looking at their use of force policy on a yearly basis and all the weapons that go with it. But there's also policies around the use of force, right? Policies like mental health response or traffic stops or arrest procedures, right? These are what I would call policies that are delineated from the use of force, but one leads to another, right? They're connected to use of force.
So when you're looking at your policies, make sure you're also looking at the policies that reasonably could have a connection to the use of force because the plaintiff's attorneys are now also asking for those policies. If it's a traffic stop, they want the traffic stop policies. If it's an emergency exception, they want to know what your policy is on that. They want to know if it's a mental health response or something having to do with a mental health response, they want to know what your policy is for that. So they're looking for the policies because by now, and here's the reason, the reason is you've all done a tremendous job, a great job of making sure that your use of force policy is solid. So the chance of that failing nowadays is pretty limited. I mean, they're, they're good.
We see, we see hundreds of departments policies in different cases. Everybody's got the basics now, right? It's so it's now they have to move one step out. That's not going to be good enough nowadays. Now they got to go out and say, okay, the use of force policy is good, but in the mental health response policy or in the traffic stop policy, or in the emergency aid policy, was one of those policies reasonable to give proper guidance? And did the officer, most important, did the officer follow that policy? Which leads to the last case here to put on your radar, because those of you from the 10th circuit know this case because it's causing a lot of havoc right now.
The 10th circuit, as I said, my opinion, and so I can clarify that on the record, my opinion, the 10th circuits taken over for the ninth circuit. And so, by the way, where did all the California people move? They moved inward. Just ask all my colleagues from the middle of the country, Wyoming, Montana. So, but the 10th circuit has had some very challenging cases. And especially after the George Floyd protests from Denver, Aurora areas around that area, a lot of litigation and a lot of very liberal thinking judges, which puts this case on my radar to watch. And it is an asterisk case right now, because this is a case where officers, there's a lot going on in this case from a prone restraint to use of electronic control weapon to allegations of duty, a failure of duty to intervene.
So it's kind of like a, it's a great training case because it's a catch-all case. It's got everything in it, but the end all situation here, so I don't confuse you, is that the 10th circuit refused to give the officers qualified immunity in this case. And this was a hot topic. And the issue that we're waiting to see is whether or not the Supreme Court chooses to get back in the ring. Because if they're going to get back in the ring, they're going to get back in the ring with this case. They have to. So let's put it on your radar just so it's there.
The purpose of this case is it strengthens excessive force jurisprudence, clarifying that one, the use of prolonged prone restraint on a handcuffed suspect who has ceased meaningful resistance is per se unreasonable. So as you know, I'm putting this case here because it is going to lead us into Dr. Desmond tomorrow, prone restraint. We're going to talk a lot about prone restraint because there's been a lot of research on prone restraint application in there. And number two, every officer present possesses a duty to intervene once the excessive nature of the force becomes apparent. I will tell you something that you could take back to talk about. I like throwing grenades down the hallway.
It gives you things to keep busy with all night as you're enjoying the cocktails. And that is this. This issue is becoming real for me right now. In the last couple of weeks, I've received calls from multiple jurisdictions where ICE has been out doing their detentions and the perceptions of the officers on the scene while ICE was making their arrests was that the ICE agents used excessive force. And my question to them was, and the question, the first chief that called me said, Hey Eric, I just want to let you know, I think we're going to arrest the ICE guy. And I'm like, Oh, well, good luck with that. But it does, it does lead to a very interesting discussion because I want to put this on your radar because my job is with my crystal ball, right?
And my little crystal ball shows me something right now that I'm concerned about. And that is I started today's training class by that all the legislation from 21 didn't really have any effect, right? Yeah. They, they made stringent laws. What, what did it, what did it do? Right. Besides messing with the brain decision, making confidence of officers.
Well, one of the things that a lot of jurisdictions got was duty to intervene in a criminal application, right? Meaning that if officers don't intervene, then, then they're going to be, that's, that's going to be an issue. And an officer can be criminally here in the state of Connecticut, the one that concerned us. And there's multiple states like it. And we have a law that says if the officer does not intervene, then they can be criminally charged. Right? So that puts us in a very interesting predicament, doesn't it? No. So as ICE is out there doing what they're doing, and you are very carefully trying to maintain your distance and, and not get involved.
The question of the day is a real one. What happens if you witness excessive force? And by the way, I don't want us to start getting hit because I will tell you the other thing I want to make sure that you understand and Spencer can agree with this is that we have seen a lot of litigation cases, nobody ever argued duty to intervene before. That was never a part of litigation cases in expert witness. And we see that argument. Well, actually they argue the duty to intervene argument more than they argue the excessive force. What does that tell you?
And so that duty to intervene situation really puts us in a very difficult situation. And it's one that you, you know, what are you doing? How are you doing it? And I will tell you, I already have three departments that have real challenges right now of, and by the way, there's video and everything where the DAs are determining what to do and how to deal with this. But the question on the table is what did the officers do? And the activists are coming out and saying, why chief, why didn't your officers intervene to stop that excessive force? That's a great question, isn't it?
That's not a good question. That's a shitty question. That's going to put you in very difficult situation. So as we wrap this one up here, this is a quintessential case. Where a sheriff, the individual, Mr. Kruger, is basically driving under the influence. He's seen in the gas station cleaning his windshield with a washer, you know, with the handle and not doing a great job.
The officers, the deputies see him. They're like, we think this guy's intoxicated. They follow him for a while. He's intoxicated. They pull him over to do a field sobriety test on him and allege that he is driving fast and failing to stay in the lane. When they light him up, when they turn the lights on, he stops in the middle of the highway. That's probably a clue, right?
He stops in the middle of the highway. And so now the officers go up to the vehicle. They go up to the vehicle with guns drawn. They remove the individual from the vehicle. Mr. Kruger, they allegedly, favor word, allegedly they pull him by his hair out of the car, allegedly slam his head on the pavement, repeatedly using tasers while attempting to handcuff him. Backup officers arrive and they participate in and fail to intervene in what the plaintiff is claiming was excessive force.
And they said they assist with shackling and leg shackling and hobby tying. And wasn't that a 90s thing? Might be back in some areas of the country, I guess. But the concept of that all led to his death. Again, he was under the influence.
They restrained him. So we have a prone restraint issue. We have a taser issue. We have an allegation of failure to intervene. And then we have his death in the allegation that the actions of the officers caused the death. Now, the district court denied summary judgment on qualified immunities. And they basically said, hey, there's enough facts here to show that the individual's constitutional rights were violated.
There's and oftentimes in the lower court, there could be material disputes of fact around the amount and the duration of force, which was the issue here. When it went to the 10th Circuit Court of Appeals, the 10th Circuit affirmed the refusal to give qualified immunity. And the issues on appeal were two that I want you to focus on. Whether the deputies used excessive force when they pulled him from his car by the hair, slammed, allegedly, slammed his head in the asphalt, allegedly, and used the taser in drivestand mode eight times. So the first question is, are these clearly established as excessive force under 10th Circuit precedent? And number two, could a reasonable jury find that the officers who were backup, the defendant backup officers, participated and failed to intervene in the violation of those constitutional rights? So the court came back and dealing with the first one and said that the jury could find that excessive force, both in the initial removal and the restraint of Mr.
Kruger and the prolonged prone restraint after subduing him. Officers successfully argued that because Graham factors weighed in their favor at the start of the encounter, they did not use excessive force. The 10th Circuit said this, the most important question in an excessive force analysis is not whether force was justified at the beginning of the encounter, but whether it remained reasonable under the totality of the circumstances, right?
And by the way, guess what they're quoting? Barnes. Barnes is back again. And another case called Smart, where they said force becomes excessive if an officer has, quote, enough time to recognize and react to the fact that the suspect no longer poses a threat, but uses force anyway. The 10th Circuit continued by saying the jury could find that the following actions of the officers here could be excessive force and clearly established as such within the 10th Circuit. And what they focused on was the alleged continued use of the taser once Kruger was effectively subdued. Officers alleged striking Kruger after he was subdued and the use of the prone restraint after Kruger was subdued.
So again, they're focusing on what the officers did allegedly after he was, in their opinion, subdued. That leads to the failure to intervene application. If they find the first one to be wrong, guess what happens to the second one? It's an automatic, right? If they found a constitutional violation on the first one, because the one thing you got to remember about failure to intervene is the application of failure to intervene is, number one, is there a reasonable interpreted constitutional deprivation? And the most important part to failure to intervene is that the question that the officer that asked to answer on the stand is very simple. Did you see it?
And did you think it was unreasonable? That's what failure to intervene says at all points. So an articulation of failure to intervene is, did you see it? And did you think it was reasonable? So here the court comes back and says, if the underlying issue is unreasonable at this part, and we believe it's unreasonable, and you tell us you saw it, then we're going to deny you qualified immunity in the aspect of whether or not you perceived it to be reasonable, which leaves this issue open for analysis. All right. The last part that I'm going to end with here and send you to lunch is, you're going to have different conversations over the next couple of days about artificial intelligence. And one of the things that you're going to see, and something that we are paying attention to, is that, so Daigle Law Group in January of 2024 issued its first artificial intelligence policy.
And I would ask you to consider, what is your artificial intelligence policy? And we're not going to get into the overuse of technology, which is a real issue. But I want to get into the fact that what we're looking to focus on, it was after our Use of Force Summit in 2024, that we wanted to focus on the concept of, what effect does using artificial intelligence to produce a Use of Force report have on the legal interpretation of perception of the officer? Our policy that we identify focuses on the fact that legally, three things we want to protect. We want to protect anything that leads to a legal conclusion, like reasonable suspicion, probable cause, an objectively reasonable basis for force. These things should never be affected by artificial intelligence because they require human evaluation. And one of the things that we will talk about over this next couple of days is the fact that we are very concerned that if we, AI has its part, we can use it in different areas.
But if we use it to articulate the perception of the officer, what effect is that going to have on qualified immunity? And more importantly, I want to end with this question. If I was a plaintiff's attorney, which I'm not, never will be, and I was cross-examining an officer on the stand today, I would just ask very basic questions. Officer, is this your report? Yes. Did you write this? Yes. Is this your signature on the bottom of it? Yes. Did you write this contemporaneous?
And then I'd have to explain that word. I'd have to say, you know, around the time to the incident. Yes. Question. Did you use any form of artificial intelligence to produce this report? The question on the table is, what does that do to the credibility? What does that do to the jury's interpretation?
What does that do to the legal standards of perception of the officer in our evaluation? Now, we're all walking this road together, but we have to be having a conversation along the way as we do this. Thank you all for listening to this episode of the Guardian Mindset Podcast. This session reinforces why strong training and sound tactics matter long before a use-of-force event occurs. That commitment to training is exactly what drives our work at the Summit each year, and we're proud to say that the 2025 Use-of-Force Summit was another successful one. We want to thank all of our instructors, sponsors, staff, and the law enforcement attendees from across the country who made it possible, and we hope to see you again next year at the 2026 Use-of-Force Summit. If you'd like to continue your training and earn new certifications, visit DLGLearningCenter.
com to explore our upcoming courses. Until next time, help those who need your help, protect those who need your protection, and most importantly, keep yourself and others safe. Thank you.
