Law – Legal Theories - Vanderbilt Law School 

Second Circuit, US District Court for District of Connecticut, and State Court 

“[U]nder the Fourth Amendment, which governs the use of force in connection  with an arrest, law enforcement officers may use only such force as is objectively reasonable under the circumstances. See, e.g., Graham v. Connor, 490 U.S. 386,  397 (1989). It is not objectively reasonable for an officer to use deadly force to apprehend a suspect unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. O’Bert v. Vargo, 331 F.3d 29 (2d Cir. 2003). See, e.g., Tennessee v. Garner, 471 U.S. 1, 3, 11 (1985). 

“The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.”  Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000). 

Qualified Immunity 
Qualified immunity “shields police officers acting in their official capacity from suits for damages unless their actions violate clearly-established rights of which an objectively reasonable official would have known.” Cane v. New Britain Police Dept., et al, USDC, D. Conn., No. 3:16 cv-01638- MPS (5/8/23, Shea, USDJ), quoting McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (quoting Jones v. Parmley, 465 F.3d 46, 553 (2d Cir. 2006) (ellipses omitted)). "When a defendant moves for summary judgment based on qualified immunity, courts consider whether the facts shown make out a violation of a constitutional right, and whether the right at issue was clearly established at the time of [the] defendant's alleged misconduct." Id. (quotation marks and citations omitted). "A right is clearly established if the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 739 (alterations, quotation marks, and citations omitted). "Although we do not  require a case directly on point to hold that a defendant's conduct violated a clearly established right, existing precedent must have placed the statutory or  constitutional question beyond debate.” Id. (quotation marks and citations  omitted). "[I]n an excessive force case, the issue of qualified immunity necessarily overlaps considerably with the question of liability on the underlying claim, as both require an assessment of the objective reasonableness of the arresting officer's conduct.” Diaz v. Hartford Police Dep't, No. 3:18CV1113(KAD), 2021 WL  1222187, at *6 (D. Conn. Mar. 31, 2021). See also Scott v. Heinrich, 39 F.3d 912, 914 (9th Cir. 1994) (“In Fourth Amendment unreasonable force cases, unlike in  other cases, the qualified immunity inquiry is the same as the inquiry made on the merits” (citation and quotation marks omitted)). 

“Summary judgment should not be granted on the basis of a qualified immunity defense premised on an assertion of objective reasonableness unless the defendant ‘show[s] that no reasonable jury, viewing the evidence in the light most favorable to the plaintiff, could conclude that the defendant’s actions were objectively unreasonable in light of clearly established law.’” Id., quoting Ford v. Moore, 237  F.3d 156, 162 (2d Cir. 2001). 

“Further, given the difficult problem posed by a suit for the use of deadly force, in which ‘the witness most likely to contradict [the police officer’s] story-the person  hot dead-is unable to testify[,] the court may not simply accept what may be a self-serving account by the police officer’” O’Bert, supra, quoting Scott v. Henrich, supra, at 915. 

Although we do not require a case “directly on point” to hold that a defendant's conduct violated a clearly established right, “existing precedent must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 580 U.S.  73, 137 S. Ct. 548, 551, 196 L.Ed.2d 463 (2017); Terebesi v. Toresso, 764 F.3d  217, 231 (2d Cir. 2014).  

“Ordinarily, in order for the law to be ‘clearly established’, there must be a Supreme Court or [Second Circuit] decision on-point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Becker v. Bateman, 709 F.3d 1019, 1023 (10th Cir. 2013) (internal quotation marks omitted). 

Duty To Intervene 
The claim of failure to intercede was made in Santana. The court held that while the officer did not fire her weapon, “as a police officer, she ‘ha[d] an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in [her] presence by other officers”, quoting O’Neill V. Krzeminski, 839  F. 2d 9, 11 (2d Cir. 1988). See also, Gagnon v. Ball, 696 F.2d 17, 21 (2d Cir.  1982). Odom, infra. See also Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994),  reh’g den., 27 F.3d 29 (1994). 

“It is ‘widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence, and a police officer is liable  for failing to intercede when excessive force is being used when there was a realistic opportunity to intervene to prevent the harm from occurring.” Chapdelaine  v. Desjardin, US Dist. Ct., D. Conn., 3:20 –cv-00779 (MPS) (2022), quoting ”Simcoe v. Gray, 577 Fed. Appx. 38, 40 (2d Cir. 2014); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). “Whether in officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue  of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Anderson, supra.  

In Jackson v. Tellado, 236 F. Supp. 3d 636 (EDNY 2017), the court held that “officers found liable for failing to intervene in other officers’ use of excessive  force [are] not entitled to qualified immunity.” Id. at 669.  

Trooper Jackson and WH Officer Rappa were on the passenger side. Rappa broke the window and Jackson deployed his taser. Trooper Dalling was present and did  nothing to intervene or de-escalate. Sgt. Zwickler (West Haven), raking officer on the scene, did nothing to intervene and de-escalate.  

Prior to the West Haven officer breaking the passenger window, and prior to Mubarak being tased by the Trooper, he sat motionless, eyes closed, staring straight ahead. It appeared that the breaking of the window, and use of the taser, startled him and woke him up. 

Initiating and Gratuitous Force 
It is well established that “the use of entirely gratuitous force is unreasonable and therefore excessive.” Chapdelaine, supra, quoting Muschette v. Gionfrido, 910 F.3d 65, 69-70 (2d Cir. 2018). 

The Second Circuit has observed that “the police may violate clearly established law by initiating significant force against a suspect who is only passively resisting.” O’Hara v. City of New York, 570 Fed. Appx. 21, 24 (2d Cir. 2014). 

Officers may not use their “reckless and unconstitutional provocation” of the suspect as justification for the use of force. Billington V Smith, 292 F. 3d 1177,  1189 (9th Cir. 2002).  

Prior to the West Haven officer breaking the passenger window, and prior to Mubarak being tased by the Trooper, he sat motionless, eyes closed, staring straight ahead. The force used by Rappa and Jackson was completely gratuitous and unnecessary. It appeared that the breaking of the window startled Mubarak and woke him up. 

When the officers saw that Mubarak had something in his hand and was “reaching”, they correctly and properly moved backwards away from the car  door. The statement by the officer on the passenger side that Mubarak was  “reaching” was in no way a direction to Trooper North to open fire.  

It may be that Mubarak was not resisting at all, given that he was permitted no time or the opportunity to comply with the initial command to exit the car. The driver’s side door was blocked by a police vehicle, and officers with guns drawn  were on the passenger side. There is also a center console between the two front seats.  

The command to “drop the knife” was given by Trooper North only after he shot Mubarak seven times.

The time from the officers surrounding Mubarak to the time he was shot was 40 seconds. No officer had even attempted to open a dialogue with Mubarak. There was no call for a supervisor. 

Taser 
In Crowell v. Kirkpatrick, 400 Fed. Appx. 592 (2d Cir. 2010), the court determined that the police officers use of stun guns on protester arrestees did not constitute excessive force in violation of the fourth amendment, where the arrestees were actively resisting their arrest.  

In MacLeod v. Town of Brattleboro, 548 F. Appx. 6 (2d Cir. 2013), the use of a Taser by a police officer on an individual who disobeyed an order to kneel on the  ground by rising to his feet, was held not to be excessive force.  

In Odom v. Matteo, 772 F. Supp. 377 (D. Conn. 2011), the court stated that “the  use of a Taser is a significant use of force….” 

Warning 
Tennessee v. Garner, 471 U.S. 1, 11-12 (1985), stands for the proposition that a pre-deadly force warning should be given “where feasible”. Garner involved a fleeing, non-dangerous suspect involved in a nonviolent crime. Id. at 4-5. It did not  involve an armed man facing an officer and raising a weapon. Therefore, a  reasonable officer would not be in fear for his life. (No warning was given to  Mubarak before he was shot.) 

If there is “probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly  force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Garner, id. at 11-12. (Mubarak did not commit such a crime.)  

When officers have no reason to believe that deadly force is required to prevent an  escape, particularly when the suspect is completely surrounded, and when the  officers have ample time, the officers need to provide a warning that they might use deadly force. Smith v. LePage, 834 F.3d 1285, 1297 (11th Cir. 2016).  

Qualified immunity is typically granted to “officers who used deadly force against  armed suspects without giving a warning, when a reasonable officer would have  believed the threat of harm was imminent.” Powell v. Snook, No. 19-13340, 11th Cir. 2019). 

Qualified Immunity  
In Graves v. Malone, 810 Fed. Appx 414, 418 (6th Cir. 2020), the officers “had no reason to believe that he held a gun.” He was stationary and non-responsive. He was incapacitated by position. He raised his hand with a black plastic object in it. Nevertheless, the officer decided to shoot him.  

(The responding officers in the present case had no reason to believe that Mubarak had a gun in his possession. Mubarak was “secured” by reason of being in a stationary motor vehicle, which was unable to move, with the doors closed and the windows up. He was noted to be unresponsive, motionless, staring straight ahead.)  

The “mere presence of a gun or other weapon is not enough to warrant the exercise of deadly force and shield an officer from suit.” Perez v. Suszczynski, 809 F. 3d 1213, 1220 (11th Cir. 2016). The use of deadly force was permitted against a mentally unstable man who had a hatchet in his hand and was advancing on an officer. Shaw v. City of Selma, 884 F  3d 1093, 1096-7 (11th Cir. 2018). 

...[A]rmed suspects can be secured before an officer disarms them.” Estate of  Wayne Jones v. City of Martinsburg, No. 18 -2142, 4th Cir. 2018, citing Young v.  Prince George’s County, 355 F.3d 751, 757-58 (4th Cir. 2004). Jones was armed with a knife in a “relatively inaccessible location”, and was unable to wield it given his position. It would therefore be “particularly reasonable to find that Jones  was secured while still armed.” Moreover, it is “excessive force to shoot the  suspect “once he was already immobilized”. “Simply being armed is insufficient to  justify deadly force.”  

 In Untalan v. City of Lorain, United States Court of Appeals, 6th Cir., No. 04 –  4489 (2005), the decedent was armed with a butcher knife, burst out of a room and lunged toward an officer. He was then shot. This individual was neither isolated nor contained at the time of the shooting, unlike Mubarak. See also Russo  v. City of Cincinnati, 950 3F. 2D 1036 (6th Cir.1992), wherein the decedent, a  schizophrenic, pointed butcher knives in each hand toward a police officer, forcing officers to open fire. 

In Tenorio v. Pitzer, United States Court of Appeals, 10th Cir. (2015), the plaintiff was holding a knife to his own throat. The plaintiff walked toward an officer and  refused the command to put the knife down. He was then shot. “[A] reasonable  jury could find that [he] did not ‘refuse’ to drop the knife because he was not given sufficient time to comply”. Tenorio made no hostile motions toward the officers, but was merely holding a small kitchen knife loosely by his thigh, and made no threatening gestures toward anyone. Id. at 1164. 

The similarities with the present case are striking. In the present case, there is no doubt that Mubarak was not provided sufficient time to comply with any command  or order. In addition, he had made no hostile motions, but was merely holding a small kitchen knife. 

“…[W]here and officer had reason to believe that a suspect was only holding a knife, not a gun, and the suspect was not charging the officer and had made no slicing or stabbing motions toward him,… it [is] unreasonable for the officer to use deadly force against the suspect.” Tenorio, id., citing Zuchel v. City and County of  Denver, 997 F. 2d 730, 735-7 (10th Cir. 1993) (another case involving a suspect  holding a knife.) 

In Cole v. Hunter, 68 F. Supp. 3d 628, 644, USDC, No. Dist. TX (2014), the court found that “a reasonable jury could find that Cole never pointed a weapon at the  officers and was not given an opportunity to disarm himself before he was shot.” The court stated that it is “clear to a reasonable officer that shooting a mentally disturbed teenager, who was pointing a gun the entire time at his own head and  facing away from the officers, in an open outdoor area, and who was unaware of the officer’s presence because no warning was given prior to the officer opening  fire, was unlawful.” Id. at 643. 

“The availability of alternative methods of capturing or subduing a suspect” Smith  v. City of Hemet, 390 4F. 3d 689, 701 (9th Cir. 2005) (en banc), and “whether the individual is mentally ill or emotionally disturbed”, Deorle v. Rutherford, 272 F.  

3d 1272, 1282 -84 (9th Cir.2001), are factors to be considered in determining whether the use of force was reasonable. 

In Turner v. City of Champaign, 979 F.3d 563 (7th Cir. 2020), the court held that  “when officers observe medical symptoms that cannot reasonably meet the mistaken as resistance, they may not respond with force.” Citing McAllister v.  Price, 615 F.3d 877 (7th Cir. 2010).  

In Glenn v. Washington County, No. CV 08-950 -MO, United States District Court, District of Oregon, Portland Division (2010), plaintiff had a knife in his  possession, but was not in any physical altercation with anyone. He was not threatening others with a knife. No one was trying to get away from him.” “Lack of compliance, active resistance, and receipt of warnings” all weigh against any Constitutional prohibition of officers use of intermediate, less lethal force.” Responding officers are not permitted to escalate “a static situation into an unnecessary and unavoidable shooting”.  

“A suspect who holds a deadly weapon, stands in close proximity to several identifiable potential victims, and repeatedly fails to comply with officers’  commands to drop the weapon, would be considered an immediate threat under existing law. See Deorle, 272 F.3d at 1280. (Inapposite to the present case.)  

It is “clearly established” and a “straightforward proposition of law” that it is “objectively unreasonable to tase a non-resisting suspect.” Graves, supra at 424,  quoting Eldridge v. city of Warren, 533 Fed. Appx. 529, 533 (6th Cir. 2013). “A simple dichotomy thus emerges: when a suspect actively resists arrest, the police can use a Taser… to subdue him; but when a suspect does not resist, or has stopped resisting, they cannot”. Id., quoting Cockrell v. City of Cincinnati, 468  Fed. Appx. 491, 495-96 (6th Cir. 2012). 

In Amador v. Vasquez, 960 1F. 3d 721 (5th Cir. 2020), the deceased had a knife, not a gun, and was several feet away from officers. He stood stationary in the  officer’s line of sight. The case law makes clear that “when an arrestee is not actively resisting arrest, the degree of force and officer can employ is reduced.” Citing Darden, 880 F.3d at 727. It is “objectively unreasonable for officers to tase  an arrestee when the arrestee’s ‘behavior did not rise to the level of active  resistance’, despite the arrestee’s alleged noncompliance with orders.’”  

In the present case, Mubarak may be seen as noncompliant with the initial order to get out of the car, but there was, in fact, no way for him to remove himself from the vehicle at the time, and he was not permitted the time to do so. 

Supervisory Liability  
Supervisory liability requires some active unconstitutional behavior on the part of the supervisor. Bass V. Robinson, 167 F. 3d 1040, 1048 (sixth circuit 1999). The  failure to supervise is only actionable if “the supervisor either encouraged the  specific incident of misconduct or in some other way directly participated in it.” Id. at 242, citing Shehee, 199 F. 3d at 300. “…[T]he plaintiff must show that the defendant (supervisor) ‘at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.’” Id. quoting Shehee, 199 F.3d at 300.  

(Sgt. Zwillich, WHPD, was the ranking officer at the scene.)  

Failure to Protect 
“Liability for failure to protect, meanwhile, arises when ‘(1) the officer observed or had reason to know that excessive force would be or was being used; and (2) the officer had both the opportunity and the means to prevent the harm from occurring.’” Graves at 420, quoting Goodwin v. City of Plainsville, 781 F.3d 314,  328 (6th Cir. 2015), citing Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).  

Trooper Dalling and WHPD Sgt. Zwillich did absolutely nothing to intercede/de escalate. 

WHPD Officer Rappa, who broke the window, was complicit and enabled Trooper Jackson to deploy the taser. Deploying the taser was inappropriate and unjustified.  Neither of them did anything to ensure that Mubarak was not killed.