An interesting case arose in the United States District Court for the District of New Mexico. The case was instituted by the personal representatives of the estate of the deceased and involved the accidental shooting of the deceased by a police officer responding to a burglar alarm. The police officer was not informed that a caretaker or homeowner would be responding to the alarm. When he saw a man standing in the open doorway, he identified himself as a police officer and asked the caretaker to identify himself. The police officer claimed that after he did so, the officer saw that the caretaker was wearing a holster and was reaching for it. The officer requested the caretaker to keep his hands down. The officer alleged that the deceased did not comply with his order and drew a gun. The officer claimed that he believed his life was in imminent danger and shot the caretaker.

The estate of the deceased caretaker filed a claim against the city and the police officer. The personal representatives of the deceased filed an action against the police officer and the city. The city filed a motion for summary judgment on the basis of qualified immunity, claiming that it is undisputed that the individual pointed a gun at the police officer and that the police officer did not violate the Constitutional rights of the deceased because his use of force was reasonable under the circumstances. The plaintiff disputed the claim contended that the officer’s reckless conduct created the need to use deadly force.

The court pointed out that under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” When a defendant raises a qualified immunity defense, the plaintiff must show “that the defendant’s conduct violated a constitutional right and that the constitutional right was clearly established when the violation occurred.”

The court pointed out that allegations of excessive force are analyzed under the Fourth Amendment’s “objective reasonableness” standard.

The plaintiff admits that the deceased brought a gun with him, but they deny that he pointed it at the police officer prior to the shooting; that what the police officer saw was an empty holster; and that the deceased began to put his hands up when he was shot.

In deciding the case, the court indicated that it would have to determine whether the officer’s use of force was reasonable under the circumstances, based on three factors. The first was “the severity of the crime at issue.” The court indicated that the offense the officer was investigating, residential burglary, is a third degree felony. The court indicated that burglars may be unarmed, but they may also be armed, as illustrated by the deceased’s decision to bring a weapon with him for safety purposes. The second factor considered was whether the suspect posed an immediate threat to the safety of the officer or others. The third factor was the distance between the parties.

The court pointed out that the three factors were only aids in making the ultimate determination “whether from the prospective of a reasonable officer on the scene, the totality of the circumstances justified the use of force.”

The court stated that the law on excessive force is well settled: An officer may use deadly force only if a reasonable officer in his position would have had probable cause to believe there was a threat of serious physical harm to himself or to others. The court indicated that the officer faced an uncertain and potentially dangerous situation when he responded to the burglar alarm that morning. If, as the officer contended, the deceased pointed his gun at him, the officer was constitutionally permitted to use deadly force to defend himself. However, taking the facts and the reasonable inferences from them in the light most favorable to deceased, there is a dispute over if the use of force was reasonable under the circumstances, which precludes granting summary judgment for him and the other city defendants. 

Accordingly, the motion for summary judgment by the city and the officer was denied.



Our company engages subcontractors to install alarm systems. I know that the contractors have to be licensed in order to install the system but do their employees have to be licensed and do I have a responsibility of checking to see if the employees are licensed?

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You are correct. If the license is required to install a system, then the subcontractor must be licensed. The laws may vary from state to state, but I am certain that if the law requires the subcontractor to be licensed, then the employees of the subcontractor must also be properly licensed. If you are using subcontractors to install your systems, make certain that they are properly licensed and that their employees working on the installation are also properly licensed.