Qualified Immunity in Use-of-Force Cases: Guidance for Police, Part 2 — Application of the Law

JOHN E.B. MYERS
Visiting Professor of Law
UC Law San Francisco

This article is continued from the December issue of PORAC Law Enforcement News.

In the prior issue of the PORAC magazine, I introduced the law of qualified immunity. This article explains the application of the law to various situations that can be faced by law enforcement, and how to address the law in your report writing.

Knives

The fact that a suspect has a weapon does not, by itself, justify force.¹ With knives, unlike guns, the distance between officer and suspect is critical. In Hayes v. County of San Diego,² a suspect holding a knife was 6 to 8 feet from deputies. The Ninth Circuit ruled that the deputies were not justified in shooting the man based on the distance between the deputies and the suspect, the fact the suspect was walking but not charging toward the deputies, and because he had not been ordered by the deputies to stop or drop the knife prior to the deputies shooting. Thus, the court deemed that the suspect may not have presented a reasonable threat to the deputies. By contrast, in Hart v. City of Redwood City,³ two police officers confronted a knife-wielding man in his backyard. The man was ordered to drop the knife, but he proceeded toward the officers while raising the knife. As the man neared the officers, he was tased but the taser was ineffective. When the man was close to the officers, he was shot and killed. The Ninth Circuit ruled the officers’ use of force was reasonable and they were entitled to qualified immunity.⁴ The court wrote, “[A] non-responsive individual approaching while holding out a knife is unarguably an immediate threat.”⁵

A close-range attack with a knife constitutes active resistance, often justifying deadly force. Brandishing a knife and/or threatening with a knife — again, distance matters — lean in the direction of active resistance.⁶ At a “safe” distance, it is not reasonable to use deadly force simply because a suspect refuses to drop a knife in response to commands.⁷ Holding a knife to one’s own neck is no reason to shoot.⁸ In Johnson v. Myers,⁹ the Ninth Circuit ruled it was not reasonable to shoot a man who held a knife in his hand and raised his hand toward his chest. The man did not threaten officers. Although the man took a few steps toward officers, he did not attack them, and he stopped moving before officers fired. Officers gave the suspect inconsistent commands, a problem often seen when multiple officers encounter a dangerous suspect — “Put your hands up,” “Don’t move,” “Get on your knees,” “Drop the knife.” In Johnson v. Myers, the Ninth Circuit was not happy with the inconsistent commands that made it difficult for the suspect to comply.

When a knife-wielding suspect is encountered, it is important to document the following: (1) nature of the space in which the encounter occurred (e.g., crowded apartment versus open city park); (2) distances between suspect, civilians and officers; (3) positions and movements of officers, suspect and civilians;¹⁰ (4) speed and direction of movement — closing speed; (5) available cover or lack thereof; (6) positions in which the knife was held at different stages of the encounter; (7) statements by the suspect; (8) furtive movements; (9) any facts shedding light on the suspect’s intentions; (10) statements by civilians; (11) statements by officers, including efforts to deescalate, commands (e.g., “drop the knife”) and warnings of impending use of force;¹¹ (12) evidence the suspect heard and understood the warnings;¹² (13) extent to which the suspect was compliant or noncompliant;¹³ (14) evidence the suspect posed a risk to officers and/or civilians; and (15) when force is used, describe the force option(s) deployed and reasons for use of force.

Guns

The ultimate active resistance is shooting at police.¹⁴ Police officers, like other citizens, have the right to defend themselves and others against deadly attack. When deadly force is reasonable, an officer need not retreat before firing.¹⁵ Police are taught — and the law allows them — to shoot until the threat is eliminated.¹⁶ However, if the threat is eliminated, then the shooting must stop.¹⁷

The latter principle — cease fire when the threat ends — sometimes causes difficulty. In Salgado v. Smith,¹⁸ late at night a New Mexico police officer stopped a car for speeding. The license plate came back to a different car. Two men were in the car. The driver exited the car and was cooperative. The passenger told the officer he had an arrest warrant and was “not going back to prison.” A struggle ensued inside the car, and the suspect shot the officer in the hip. The suspect tried to unholster the officer’s weapon. The officer backed out of the car, drew his weapon and fired one round at the suspect’s chest, hitting him. The officer ordered the suspect to put his hands up as the officer sought cover behind his patrol car. The suspect and his gun were still inside the car, and the officer could not see into the car. Suddenly, the suspect’s foot and lower leg emerged from the car, at which point the officer fired seven rounds into the vehicle, killing the suspect. About eight seconds elapsed between the officer’s first shot and the final volley. The suspect’s family sued the officer under Section 1983, arguing the officer was obliged to stop shooting after the first shot. The Tenth Circuit Court of Appeals disagreed, granting the officer qualified immunity. The court noted that before an officer is required to stop shooting, they must have enough time to recognize and react to the fact that the suspect no longer poses a threat.¹⁹ In Salgado v. Smith, there was no clearly established law that the officer acted unreasonably.

Contrast Salgado v. Smith with Estate of Hernandez v. City of Los Angeles,²⁰ from the Ninth Circuit. In the space of six seconds, an LAPD officer shot at Hernandez six times. Hernandez was armed with a knife. He repeatedly ignored the officer’s commands to stop moving toward the officer and to drop the knife. The officer fired three volleys of two shots each, pausing briefly after each volley. After the second volley, Hernandez fell to the ground, although he continued moving. The final shot was fatal. The majority of judges on the Ninth Circuit denied the officer qualified immunity, ruling that it was clearly established that when an officer shoots and wounds a suspect who falls to the ground, the officer cannot continue shooting absent some indication the suspect poses a continuing danger. The court ruled that “a fallen and injured suspect armed only with a bladed instrument does not present a continuing threat merely because he makes nonthreatening movements on the ground without attempting to get up.”²¹ No one disputes that an officer whose shots incapacitate a suspect, ending the threat, must stop shooting. With due respect for the Ninth Circuit, however, it seems out of touch with reality to ask a police officer, in the span of six seconds, to pause between shots to evaluate the effect of each bullet.²² Four of the Ninth Circuit judges disagreed with the majority, arguing that the officer did not use unreasonable force and should have been granted qualified immunity. In his separate opinion, Judge Nelson wrote, “Contrary to the majority’s conclusion, … Officer McBride’s six shots over six seconds did not trigger a duty to reassess the risk Hernandez posed, particularly where he remained armed and in motion during that entire time.”²³ Judge Nelson stated that the majority extended the stop-and-reassess requirement to an absurd and dangerous extreme. “Put simply, there is no duty to reassess after each shot over a six-second period in a high-intensity situation like the one here…. [I]t beggars belief that an objectively reasonable officer would think Hernandez was incapacitated in just 1.36 seconds when he had just attempted to rise and was still in motion.”²⁴

Judge Nelson’s opinion finds support in the decision of the Seventh Circuit in Brumitt.²⁵ Sergeant Smith of the Evansville Police Department was on patrol when he entered the parking lot of a bar late at night and spotted Brumitt lying down outside. Smith approached Brumitt to check on his well-being and to check for warrants. When Smith spoke to Brumitt, Brumitt sat up, appeared drunk, swore at Smith and struck the sergeant in the face. In response, Smith punched Brumitt four times in four seconds or less, knocking him out. It was unclear which punch rendered Brumitt unconscious. Brumitt sued, arguing the sergeant had a duty to reassess after each punch whether Brumitt was still a threat. Disagreeing, the Seventh Circuit wrote, “[T]he principle that officers may not use force on a subdued suspect does not clearly establish that officers must repeatedly reevaluate their use of force throughout an encounter lasting a few seconds to avoid applying extra units of force immediately after a suspect submits.”²⁶ In a concurring opinion, Judge Pryor wrote that when there is time for officers to reassess the need for continued force, they must do so, but in Smith’s case, the gap in time between Brumitt going limp and the sergeant’s final strike was insufficient to put Smith on notice that his additional force was unreasonable.

With guns, as with knives, it is important to document precisely what happened. Lawyers are going to examine the police report under a microscope, and at least some of those lawyers are looking for things to criticize.

Summary of Qualified Immunity

Qualified immunity is not simple. Like most legal principles that balance competing interests, it is difficult to predict outcomes. Yet, for the thousands of police officers on the street, qualified immunity is important. The principle of qualified immunity offers some comfort — uncertain comfort — that officers won’t lose everything just for doing their job.

Report Writing With an Eye on Qualified Immunity

During a career, officers write hundreds, if not thousands, of reports. Officers understand the importance of accurate and complete reports. Deputy district attorneys use reports to make charging decisions. When officers testify, they use their report to refresh their memory. Officers owe it to the public and to their department to write complete and accurate reports. Officers know that criminal defense attorneys scrutinize police reports for inaccuracies and inconsistencies to use against them during cross-examination on the stand. What officers may not have in mind when they write reports is the possibility of a Section 1983 civil lawsuit being filed against them, alleging they used excessive force. Because a 1983 lawsuit is possible following any use of force, I recommend officers write reports with qualified immunity in mind. I do not suggest that officers cite the Graham factors in their reports. Doing so may make it look like you think you might have used excessive force and are covering your tracks. Rather, I suggest that officers include detailed descriptions of the seriousness of the crime, the danger the suspect posed to officers and the public, and the degree and kind of resistance encountered. If a 1983 case comes your way, a report detailing the information relevant to qualified immunity strengthens your defense.

About the Author

John E.B. Myers is visiting professor of law at the University of California College of Law, San Francisco, and a reserve police officer with the University of the Pacific, Stockton, and city of Ione.

References

1. Napouk v. Las Vegas Metropolitan Police Department, 123 F.4th 906, 917 (9th Cir. 2024); Hyer v. City and County of Honolulu, 118 F.4th 1044, 1062 (9th Cir. 2024) (“our precedent is clear that an individual’s mere possession or believed possession of a weapon is insufficient to justify deadly force. Rather, a greater showing — for instance, that the suspect used a threatening gesture — is needed.”).
2. 736 F.3d 1223 (9th Cir. 2013).
3.   99 F.4th 543 (9th Cir. 2024).
4.   In Napouk v. Las Vegas Metropolitan Police Department, 123 F.4th 906 (9th Cir. 2024), the Ninth Circuit wrote: “Napouk was within nine feet and deliberately advancing on the officers with what they reasonably perceived to be a long, bladed weapon in his hand…. Napouk was behaving erratically, holding what the officers believed to be a lethal weapon, repeatedly ignoring their commands to stop and to drop it, and repeatedly deliberately advancing toward them with the weapon in his hand. Those facts and circumstances, regardless of whether he verbally threatened them or became increasingly irritated, show an immediate threat.”
5. 99 F.4th at 552 (emphasis in original).
6. Johnson v. Myers, 129 F.4th 1189 (9th Cir. 2025).
7. Johnson v. Myers, 129 F.4th 1189 (9th Cir. 2025).
8. Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011); Walker v. City or Orem, 451 F.3d 1139, 1160 (10th Cir. 2006).
9. 129 F.4th 1189 (9th Cir. 2025).
10.  In use-of-force cases, it might make sense to do the same of measurements, distances, estimations of speed, etc., that cops perform in vehicle accident investigations.
11. Napouk v. Las Vegas Metropolitan Police Department, 123 F.4th 906, 919, 921 (9th Cir. 2024) (must give warning of deadly force when practical).
12. Napouk v. Las Vegas Metropolitan Police Department, 123 F.4th 906, 920 (9th Cir. 2024).
13. Klum v. City of Davenport, 2025 WL 2167879 (8th Cir. 2025).
14. Estate of Parker v. Mississippi Department of Public Safety, 140 F.4th 226, 242 (5th Cir. 2025) (“We have never held that returning fire at an active shooter who is holding a hostage constitutes a Fourth Amendment violation.”).
15. Napouk v. Las Vegas Metropolitan Police Department, 123 F.4th 906, 919 (9th Cir. 2024). In the context of self-defense, California, like nearly all states, is a “stand your ground” state. A person — civilian or officer — defending themselves has no duty to retreat before using self-defense. The no-duty-to-retreat rule applies to officers who are not acting in self-defense but are working to overcome resistance, effect arrest or prevent escape. The no-duty-to-retreat rule is codified in Penal Code Section 835a.
16. Plumhoff v. Rickard, 572 U.S. 765, 777 (2014); Estate of Hernandez v. City of Los Angeles, 139 F.4th 790, 800 (9th Cir. 2025).
17.  It is generally accepted that when resistance stops, force stops. See Rosenbaum v. City of San Jose, 107 F.4th 919, 922 (9th Cir. 2024) (“our caselaw clearly establishes that officers violate the Fourth Amendment when they allow a police dog to continue biting a suspect who has fully surrendered and is under officer control.”).
18. 2025 WL 1879232 (10th Cir. 2025).
19.  See Zion v. County of Orange, 874 F.3d 1072 (9th Cir. 2017) (officer fired nine times, bringing suspect to the ground; officer fired nine more times from a distance of four feet and stomped on the suspect’s head three times; the Ninth Circuit ruled a reasonable officer under these circumstances would have reassessed the situation after the first nine shots rather than continue shooting).
20.  139 F.4th 790 (9th Cir. 2025).
21. 139 F.4th at 795.
22.  In this article, I have attempted to remain neutral. I agree that when a suspect is no longer resisting, force must end. That said, I take the liberty to say that in my opinion Estate of Hernandez is a terrible decision. Officer McBride had six seconds to defend herself from a knife-wielding suspect who ignored her repeated commands to stop moving toward her and drop the knife. Her first four shots finally stopped him. The pause between the fourth shot and the final fatal shot was less than two seconds. The judges who ruled against McBride seem to have forgotten that cops make split-second decisions in dangerous and uncertain situations, and that judges are not supposed to second-guess those decisions. The dissenting judges got this one right: Officer McBride did nothing wrong.
23.  139 F. 4th at 805.
24.  139 F. 4th at 809.
25. 104 F.4th 444 (7th Cir. 2024).
26. 104 F.4th at 449.