Can the Police Shoot a Person Who Refuses to Drop a Knife?

According to the CDC, a “sharp instrument” was used in over 1,300 homicides in 2019. Knives are dangerous and police officers are justified in treating them as such. Under what circumstances may an officer shoot someone who refuses to drop a knife?

The short answer is, under circumstances in which the person with the knife poses an imminent threat of death or serious physical injury to an officer or someone else. That is the general standard for using deadly force established by Tennessee v. Garner, 471 U.S. 1 (1985). Looking at some recent cases helps to flesh out how courts have applied Garner in cases involving knives.

Supreme Court: qualified immunity applied when an officer shot a knife-wielding woman, behaving erratically, who was six feet away from another woman. In Kisela v. Hughes, __ U.S. __, 138 S.Ct. 1148 (2018) (per curiam), the Court considered a case in which officers responded to reports of a woman acting erratically with a kitchen knife, including using it to hack at a tree. They encountered one woman, Chadwick, standing in a driveway near a car, while another woman, Hughes, emerged from a nearby home carrying a knife. Hughes walked towards Chadwick and stopped six feet from her. The officers were separated from both Hughes and Chadwick by a chain-link fence. An officer ordered Hughes to drop the knife, but she didn’t. Officer Kisela then shot Hughes. Hughes survived and sued, alleging excessive force. The district court granted summary judgment to Kisela, the Ninth Circuit reversed, and the Supreme Court reversed again.

The Court did not decide whether Kisela used excessive force, instead basing its decision solely on qualified immunity. It concluded that Kisela’a actions did not violate clearly established law. There was no prior decision closely on point, nor was the case so obvious that on-point precedent was unnecessary:

Kisela says he shot Hughes because . . . he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and [another officer]. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife.

Fourth Circuit: an officer may have used excessive force when he shot a man who was harming himself with a knife and who approached to within 8 to 20 feet of the officer – but qualified immunity applied. In Wilson v. Prince George’s County, 893 F.3d 213 (4th Cir. 2018), an officer responded to a call about a man, Wilson, breaking in the door of his ex-girlfriend, Johnson, arguing with her, and slapping her. By the time the officer arrived, Wilson had left – but he returned while the officer was present. Wilson pulled a “shiny object” from his pocket as he and the officer approached each other. The object turned out to be a knife, and Wilson began to cut and stab himself with it, including in the throat area. The officer drew his handgun and ordered Wilson to drop the knife, but Wilson refused and shouted obscenities at the officer. When Wilson was somewhere between 8 and 20 feet away from the officer, the officer shot him. Wilson survived and sued, alleging excessive force. The district court granted summary judgment for the officer, finding no excessive force and, in the alternative, ruling that qualified immunity applied.

The court of appeals found that summary judgment on the excessive force issue was not appropriate:

Viewed in the light most favorable to Wilson, the facts show that Wilson did not threaten Officer Gill, Johnson, or any other individual present at the scene during the encounter. Wilson had a small knife in his hand and did not drop the knife when ordered to do so by Officer Gill. However, Wilson testified, and the defendants do not dispute, that Wilson never pointed the pocket knife in the direction of anyone but himself. Neither did Wilson move suddenly or act in a threatening manner toward Officer Gill or others. Additionally, at the time Officer Gill discharged his weapon, Wilson had slit his own throat and had stabbed himself in his chest.

But the reviewing court affirmed on qualified immunity, finding that it was not “clearly established” at the time of the shooting that using deadly force under these circumstances was excessive. Of course, Wilson itself may clearly establish that for future encounters.

Recent published cases from other circuits. Although not binding in North Carolina, cases from other federal circuit courts can be useful indicators of how courts may view certain fact patterns. Such cases may also be relevant to the existence of qualified immunity, as a “consensus of cases of persuasive authority” may defeat qualified immunity. Booker v. Dep’t of Corr., 855 F.3d 533 (4th Cir. 2017) (citation omitted). Two recent cases from other courts are summarized below.

  • Lee v. Russ, 33 F.4th 860 (6th 2022). A man named Groom stole a prescription drug from a pharmacy and fled. When police located and confronted him, he drew a large knife. The officers drew their firearms and ordered Groom to drop the knife. He refused and walked towards one officer, Russ, waving his knife and yelling at Russ to shoot him. He stopped about 30 feet from Russ and lowered his knife to waist height. After 20 seconds, Groom took another step, possibly sideways to Russ. Russ shot him and he died. His next of kin sued, alleging excessive force. The district court granted summary judgment based on qualified immunity. The Sixth Circuit reversed, concluding that taking the evidence in the light most favorable to the plaintiff,

a reasonable jury could find that Russ violated Groom’s constitutional rights. Groom did not pose an imminent and serious risk when Russ fired his weapon. Russ, the closest individual, stood near the back of his vehicle 30 feet away. Officer Lee provided cover with his firearm from behind Groom. . . . Groom did not make any verbal threats. He stood still for roughly 20 seconds, lowered his knife to waist height, then made one step sideways to Russ. This was not a threatening advance or at least that is what a jury could find . . . . [A]ll record facts considered, Groom’s actions in the moments before the shooting did not justify lethal force.”

The court also found that qualified immunity did not apply, as the case was similar to Sova v. City of Mount Pleasant, 142 F.3d 898 (6th Cir. 1998), which clearly established that the use of deadly force was excessive on the facts presented by the plaintiff.

  • Ventura v. Rutledge, 978 F.3d 1088 (9th 2020). Officer Rutledge responded to a report of a violent domestic disturbance in which Omar Ventura had assaulted the mother of his children. Ventura left before Rutledge arrived, but he returned while Rutledge was there. Ventura drew a knife and advanced on his former partner. Rutledge ordered Ventura to drop the knife, but Ventura refused. When Ventura was between 10 and 15 feet from his ex, Rutledge shot him. Ventura’s next of kin sued, alleging excessive force. The district court granted summary judgment for Rutledge on qualified immunity, and the Ninth Circuit affirmed.

Factors. Determining whether an officer is justified in using deadly force to respond to a noncompliant person with a knife requires analyzing several factors, among them:

  • The size of the knife
  • The size and strength of the person, see Chappell v. City of Cleveland, 585 F.3d 901 (6th Cir. 2009) (considering subject’s height and weight in granting summary judgment to officer)
  • How the person is holding the knife, i.e., whether the person is brandishing it or pointing it at anyone
  • The distance from the person to officers or others
  • Whether the person has made or is making aggressive movement towards officers or others
  • Whether the person has made or is making verbal threats towards officers or others
  • Whether the person is behaving erratically
  • Whether the person appears to be intent on harming him- or herself

The distance factor warrants an additional comment. Many officers are familiar with an old experiment suggesting that a person who is within 21 feet of the officer may be able to reach the officer before the officer can draw a holstered handgun and bring it to bear on the person effectively. Suffice it to say that the law does not support an extrapolation or interpretation of that experiment to conclude that an officer may use deadly force on a person armed with a knife who is within 21 feet of the officer. Under some circumstances, a person armed with a knife who is more than 21 feet away may present a life-threatening risk, for example if the person is armored, moving rapidly, or appears to be proficient in throwing knives. Meanwhile, other factors, including the behavior of the person, the terrain, the presence of other officers, or the fact that an officer’s gun is already drawn and aimed may foreclose the use of deadly force against a person who is closer than 21 feet. People interested in further reading about the history and current thinking about the so-called “21 foot rule” might look here and here.

Conclusion. Confronting a person armed with a gun must be terrifying for law enforcement officer. But confronting a person armed with a knife is much more complicated from a legal standpoint. As the discussion above illustrates, the officer must analyze a number of factors quickly and accurately to ensure that his or her actions are within the law.