Domestic disturbances all too often involve an angry and dangerous intimate partner or ex-partner and then a call for police assistance, saying, “Hey, can I get somebody to come over to my house, my ex-husband is in the garage, he will not leave, he’s drunk and it’s going to get ugly real quick.” That was the 911 call made on August 12, 2016 in Tahlequah, Oklahoma. The dispatcher then said, “If we send somebody out there, he will go to jail for being intoxicated in public, if that’s what you want to happen.” “Yes, that is.”

Two Tahlequah officers arrived at the home simultaneously, found the ex-husband in the garage, and were informed that he was intoxicated. A body cam captured the encounter in the garage, which speaks for itself. Video [graphic content] https://youtu.be/hZe3hOlLQF8 As the two officers tried to talk to the ex-husband, he began to walk towards the back of the garage and the officers followed. A third officer arrived and entered the garage. The ex-husband picked up a hammer, causing the officers to back up a few steps and draw their guns. The officers repeatedly shouted at the ex-husband to drop the hammer, but he repeatedly refused, literally saying “No.” Approximately eight to ten feet separated the ex-husband from the closest officer. One officer switched from his gun to a taser. After some additional verbal exchanges, the ex-husband raised the hammer with one hand. In response, two of the three officers fired multiple shots with a very short break before final shots were fired. Emergency Medical Services later transported the ex-husband to a hospital where he was pronounced dead.

A lawsuit and appeal sent the Tahlequah case to the U.S. Supreme Court that led to a “decision” in October 2021. The Court explicitly declined to decide whether the Tahlequah officers violated the Fourth Amendment. As discussed more below, the Court also declined to decide whether “recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment” (the “Reckless Conduct” question). The Court resolved this appeal with a very narrow decision: qualified immunity protected the Tahlequah officers from liability because there was no previous court case with sufficiently similar facts establishing a clear rule broken by the Tahlequah officers.

Unfortunately, failure to address the Reckless Conduct question leaves the public and officers in a dangerous situation that needs to be resolved for everyone’s benefit. Police responding to an urgent domestic disturbance move as quickly as possible to prevent serious injury to the citizen in jeopardy. In so doing, the police focus on containing the threat as quickly as possible, which often leads to a “seizure” (an arrest) of the threatening party that may then lead to serious injury or death. The Fourth Amendment of the United States Constitution prohibits “unreasonable” seizures. Under federal law governing Colorado law enforcement, the 10th Circuit Court of Appeals has stated that the “reasonableness of [officers’] actions depends both on whether the officers were in danger at the precise moment that they used force and on whether Defendants’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” Allen v. Muskogee (10th Cir. 1997) quoting Sevier v. City of Lawrence (10th Cir. 1995).

Law enforcement should and do continuously review tactical training and policies used to end domestic disturbances without serious injuries to the emergency caller, the police, and the threatening individual. But the decision in Tahlequah leaves more questions unanswered about the line in federal law between a constitutional and unconstitutional response to domestic disturbances. When can officers corner a threatening individual? When can the officers use elevated voice commands? When can they show an intent to use lethal or less lethal force? Should officers back away more often at the risk of leaving the emergency caller exposed to danger in a home? Should police back away more often before sending more officers into a home or a garage? Does the public prefer that the police risk allowing a barricade situation (risking more danger) before approaching a threatening suspect in a home? The passage of police reform bills (i.e., SB20-217 and HB21-1250) raise the same questions. Without more guidance from the Supreme Court on the Reckless Conduct question, or perhaps regardless of the courts, the public and law enforcement need to discuss and begin articulating the risks that the public is willing to accept. The discussion may lead to a better understood social contract that implicitly and loosely exists between law enforcement and the public about expectations. This implied social contract could then inform the courts.