Page 31 - TPA Journal July-August 2025

judged from the perspective of a reasonable offi- Taking the facts alleged as true, a reasonable offi-
cer on the scene, rather than with the 20/20 vision cer in Deputy Gallardo’s position would have rea-
of hindsight.” And one must account for “the fact sonably believed that Steve had or was reaching
that police officers are often forced to make split- for a gun—meaning Steve “pose[d] a threat of
second judgments—in circumstances that are serious harm to [him] or to others.” The body cam
tense, uncertain, and rapidly evolving—about the footage and complaint as pled show as much,
amount of force that is necessary in a particular including (1) the 911 call informing Deputy
situation.” To access reasonableness, we consider Gallardo that Steve had a gun and was in an unsta-
three factors that the Supreme Court outlined in ble (indeed suicidal) mental state, (2) Steve’s
Graham v. Connor: (1) “the severity of the crime walking toward the door while yelling, (3) Lou
at issue,” (2) “whether the suspect poses an imme- Anne telling Steve to “put [the gun] up,” (4) Lou
diate threat to the safety of the officers or others,” Anne informing Deputy Gallardo that “he’s got a
(3) “and whether he is actively resisting arrest or gun,” and (5) Deputy Gallardo commanding Steve
attempting to evade arrest by flight.” twice to “put [the gun] down.” Nor would a rea-
When it comes to deadly force, “[a]n officer’s use sonable officer in Deputy Gallardo’s position
of deadly force is not excessive, and thus no con- “have to permit [Steve] to aim his weapon before
stitutional violation occurs, when the officer rea- answering the threat.”
sonably believes that the suspect poses a threat of Appellants also allege a failure-to-supervise claim
serious harm to the officer or to others.” “if the against Sheriff Babcock, relying on the single
officer believes the suspect has a gun, the calcula- incident exception to do so. Appellants needed to
tion changes—even if there was never, in fact, a show “(1) the [sheriff] failed to supervise or train
gun.” Uses of force may be reasonable when the the officer; (2) a causal connection existed
officer could reasonably believe the suspect was between the failure to supervise or train and the
reaching for or had a gun. violation of the plaintiff’s rights; and (3) the fail-
Much confusion exists around whether Steve was, ure to supervise or train amounted to deliberate
in fact, holding a gun the moment he was shot. indifference to the plaintiff’s constitutional
The body cam footage is inconclusive: Deputy rights.” Even assuming arguendothat there was a
Gallardo was standing outside the front door peer- failure to supervise, Appellants cannot succeed at
ing into the home after being informed by Lou the second step because no violation of rights
Anne that Steve “ha[d] a gun,” so the doorframe occurred.
obscures where Steve was standing and footage Appellants also levy a Monell claim against
neither confirms nor denies that Steve was holding Young County. “[M]unicipal liability under sec-
a gun. At the same time, the complaint alleges that tion 1983 requires proof of three elements: a poli-
Steve “had gotten up from his chair with his gun” cymaker; an official policy; and a violation of con-
and walked “to the bedroom doorway” while stitutional rights whose ‘moving force’ is the pol-
yelling. Lou Anne herself even believed Steve had icy or custom.” “‘[I]t is well established that there
a gun, telling him to “put it up” and informing must be an underlying constitutional violation for
Deputy Gallardo “he’s got a gun.” And Deputy there to be a claim under Monell.’” But no con-
Gallardo radioed this information, then told Steve stitutional violation took place here. So, the
“put it down man, put it down” directly before fir- Monell claim lacks an underlying constitutional
ing, indicating that he saw (or at least believed that claim and therefore fails.
he saw) Steve holding a gun before firing. But Finally, Appellants argue that Young County vio-
whether Steve was in fact aiming a gun at Deputy lated the ADA. An ADA plaintiff must show: “(1)
Gallardo does not matter—binding caselaw that he has a qualifying disability; (2) that he is
demonstrates that what matters is whether Deputy being denied the benefits of services, programs, or
Gallardo could reasonably believe that Steve was activities for which the public entity is responsi-
reaching for or had a gun. ble, or is otherwise discriminated against by the

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