by Brian MacMaster, Chief Law Enforcement Consultant

Law enforcement officers sometimes have to make life-or-death decisions in a matter of seconds. When an officer uses deadly force, that decision will later be examined in a much different environment, where investigators, lawyers, courts, and perhaps a jury will have considerably more time to consider what happened.

One question that may arise is whether the officer gave a warning before using deadly force.

The more precise rule is this: a warning can be an important part of the Fourth Amendment deadly-force analysis when circumstances make one feasible. But the U.S. Supreme Court has never held that the Fourth Amendment imposes a freestanding, categorical requirement that officers warn before using deadly force in every deadly-force encounter.

The words when feasible are important. An officer confronted with an immediate deadly threat is not required to delay a necessary defensive response to issue a warning. On the other hand, if circumstances reasonably permit a warning, the failure to give one can become an important part of the Fourth Amendment analysis in an action under 42 U.S.C. § 1983.

The Rule Begins With Tennessee v. Garner

The starting point is Tennessee v. Garner, 471 U.S. 1 (1985). Garner involved the use of deadly force against a fleeing suspect. The Supreme Court held that deadly force may not be used to prevent escape unless the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to the officer or others.

The Court also included an important qualification: “if, where feasible, some warning has been given.” But that language appeared in Garner’s discussion of deadly force used to prevent the escape of a dangerous fleeing suspect. The Supreme Court did not announce a separate, universal warning rule governing every use of deadly force.

That matters. Garner did not hold that a warning is invariably required before an officer uses deadly force. Indeed, the Supreme Court has never squarely held that the Constitution imposes a categorical warning requirement on all deadly-force situations. In the fleeing-suspect circumstances it addressed, Garner says deadly force may be used when the constitutional conditions are met and, “if, where feasible, some warning has been given.”

Graham v. Connor Does Not Require a Warning

One point needs to be kept straight: Graham v. Connor, 490 U.S. 386 (1989), does not itself require an officer to give a warning before using force, including deadly force.

Graham established the broader Fourth Amendment standard for evaluating police use of force: objective reasonableness. The officer’s actions must be judged from the perspective of a reasonable officer at the scene, recognizing that officers frequently must make split-second decisions under tense, uncertain, and rapidly evolving circumstances.

The familiar Graham considerations include the seriousness of the crime, whether the person presents an immediate threat, and whether the person is actively resisting arrest or attempting to flee. The Supreme Court did not identify the giving of a warning as a separate Graham factor.

For training purposes, keep the two cases separate. Graham supplies the objective-reasonableness framework. The warning language comes from Garner and its fleeing-suspect analysis. Later Supreme Court cases have continued to quote Garner, but the Court has not held that a warning is a rigid prerequisite to every constitutional use of deadly force.

The First Circuit, however, has read Garner more broadly and has stated that, when feasible, an officer must give some warning before employing deadly force. See McKenney v. Mangino, 873 F.3d 75, 82 (1st Cir. 2017); Begin v. Drouin, 908 F.3d 829, 835 (1st Cir. 2018); Conlogue v. Hamilton, 906 F.3d 150 (1st Cir. 2018).

For Maine officers, the First Circuit rule is important. But it should not be attributed to a Supreme Court holding that warnings are universally required. Neither the Supreme Court nor the First Circuit requires an officer to hesitate in the face of an immediate deadly threat merely to give a warning.

Maine Cases Illustrate the Problem

The First Circuit has considered the warning issue in several cases arising from Maine police-involved shootings.

In McKenney v. Mangino, 873 F.3d 75 (1st Cir. 2017), the court considered the shooting of an armed, suicidal individual. The First Circuit put the rule plainly:

“When feasible, a police officer must give some sort of warning before employing deadly force.”

What makes McKenney particularly useful for training is the timing.

McKenney had previously been ordered to drop his firearm, but approximately six minutes passed between the last command and the shooting. At the summary judgment stage, the court was required to view disputed facts favorably to the plaintiff. In that context, the absence of a more contemporaneous warning became part of the court’s reasonableness analysis. From an operational standpoint, timing matters. A warning given several minutes earlier is not necessarily the same as a warning given immediately before force is used. Circumstances change. So can the threat.

The First Circuit dealt with the issue again in Begin v. Drouin, 908 F.3d 829 (1st Cir. 2018), involving an Augusta police shooting of a man armed with a knife. The court stated: “Further, when feasible, a warning must be given first.”

For purposes of summary judgment, the court was required to consider a version of the facts under which Begin was approximately 20 feet away, armed with a knife, suicidal, had not threatened anyone else by word or movement, and had received no warning before he was shot. The court concluded that factual questions remained concerning both the immediacy of the threat and whether a warning was feasible.

That does not mean officers must warn every armed person before using deadly force. A person who suddenly points a handgun at an officer or charges an officer with a knife presents a very different situation. There may be no meaningful opportunity to say anything before responding.

The question, then, is whether there was a meaningful opportunity to warn.

There Are No Magic Words

Conlogue v. Hamilton, 906 F.3d 150 (1st Cir. 2018), provides a useful contrast. Conlogue was armed with a handgun. Officers repeatedly ordered him to drop it, and immediately before the shooting his movements caused the officers to perceive an imminent deadly threat. Unlike the circumstances considered in McKenney, the commands in Conlogue occurred during the minutes and seconds immediately preceding the shooting.

Officers sometimes ask whether the warning has to be something formal such as, “Drop the gun or I will shoot.”

It doesn’t.

There are no constitutional magic words. Depending on the situation, commands such as “Drop the gun,” “Drop the knife,” “Show me your hands,” or “Don’t reach for the weapon” may convey exactly what needs to be communicated.

What Does “Feasible” Really Mean?

For training purposes, this is the central question.

Feasible does not mean that someone reviewing body-camera video six months later can freeze the recording and identify a fraction of a second when an officer could theoretically have said something.

Police encounters do not occur in freeze-frame.

The issue is whether, under the circumstances confronting the officer, there was a meaningful opportunity to give a warning. Officers are not required to compromise their safety—or someone else’s—to recite a warning before responding to an immediate threat.

At the same time, the mere presence of a weapon does not automatically make a warning impossible. Distance matters. Cover matters. Where the weapon is pointed matters. The presence of other people matters. The person’s movements matter. Most importantly, the speed at which the situation is developing matters.

Officers should be continually assessing both the threat and their options.

Maine Policy Requires a Warning When Feasible

The issue is not limited to federal case law.

The Maine Criminal Justice Academy’s mandatory minimum policy standards require an agency’s use-of-force policy to contain a statement that “when feasible, a warning must be given before the application of deadly force.”

For Maine officers, then, the issue of warnings belongs in training, policy review, and use-of-force decision-making—not just in discussions about civil litigation.

Maine’s Deadly-Force Statute Is Different

Maine’s justification statute, 17-A M.R.S. § 107, is not identical to the federal Fourth Amendment rule.

Section 107(2)(A) authorizes deadly force when an officer reasonably believes it necessary to defend the officer or another person from what the officer reasonably believes is the imminent use of unlawful deadly force. That provision does not contain a general requirement that the officer first give a warning.

Section 107(2)(B), which addresses deadly force in connection with an arrest or the prevention of escape, contains a different advisement requirement regarding the officer’s status and purpose.

The practical point is that a shooting can satisfy Maine’s justification statute without necessarily resolving the Fourth Amendment issue. The federal constitutional analysis may still include an inquiry into whether a warning was feasible.

Put the Facts in the Report

The same distinction matters in report writing.

After a deadly-force incident, simply writing “a warning was not feasible” tells the reader only the officer’s conclusion.

The report should instead describe the facts.

How quickly did the weapon appear? How far away was the person? What was the person doing with the weapon? Was the person advancing? What was the officer doing? What happened immediately before the decision to fire? What made the threat immediate?

If a warning or command was given, describe that too. What was said? Approximately when was it said? Did the person respond? What happened next?

Body-worn cameras make this especially important. Video can later be slowed down, stopped, replayed, and examined frame by frame. But the camera does not necessarily tell the viewer what the officer saw, what drew the officer’s attention, or why the officer believed there was—or wasn’t—time to give another command.

The officer’s report should describe the officer’s actual observations and perceptions. It should not be written later to make the officer’s recollection fit what someone sees on the video.

The Bottom Line

For Maine officers, the practical rule is straightforward.

When feasible, warn before using deadly force. That is the rule articulated by the First Circuit and required by Maine policy. It should not, however, be described as a categorical holding of the U.S. Supreme Court applicable to every deadly-force encounter.

When an immediate deadly threat leaves no reasonable opportunity to warn, an officer is not required to delay necessary defensive action merely to get the words out.

For supervisors, investigators, and trainers, asking only, “Did the officer warn?” misses much of the issue.

A better inquiry is:

• What was happening immediately before deadly force was used?
• Was there a meaningful opportunity to warn?
• If there was, what warning or command was given, and when?
• If there wasn’t, what was happening that made a warning impracticable or infeasible?

Those questions focus attention where it belongs—on what the officer was actually confronting when the decision had to be made.