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On April 3, 2018, Jeffrey Parker called 911 from his Huntsville, Alabama residence and threatened to blow his head off. Huntsville Police Department (HPD) officers Pegues and Beckles were dispatched to the call. Upon arrival, Pegues drew her pistol and made a partial entry through the front door, thereby exposing half her body to the inside. She observed Parker sitting on a couch with what appeared to be a gun at his own head. She told Beckles, still outside, what she saw. Beckles informed police dispatch that Pegues had seen Parker with a gun to his head. [1]

Officer Darby heard Beckles radio call about a guy with a gun threatening suicide and responded. Darby arrived and saw that Pegues had her gun drawn but pointed down. He commanded her to point her gun at Parker because he thought that Parker could kill her. Pegues moved completely into the residence and briefly raised her gun but almost immediately lowered it. Both Beckles and Darby followed her inside and demanded that Parker drop the weapon.

Pegues also pleaded with Parker to drop the weapon, but he kept it pointed at his head and refused to drop it. Darby, believing that all three officers were in danger of being shot, fired at Parker and killed him.

Darby was charged with murder. After a jury trial, he was found guilty and sentenced to 25 years in prison.

Officer Pegues testified at Darbys trial that prior to Darbys arrival, she attempted to de-escalate the situation, but that once Darby entered the residence, she could feel the tension just rising. She testified that Parker didnt threaten her or do anything to make her believe he wanted to do anything other than commit suicide.

Officer Beckles testified that at no time during this event did he feel the need to take deadly force action. He stated that Parker didnt make any overt action to indicate that he was about to point his weapon at the officers. He estimated that Parker was ordered to drop the weapon about seven times but failed to comply.

An HPD detective investigated the shooting incident and testified that he found no evidence that Parker ever made a hostile determination towards anybody other than himself.

Officer Darby testified that upon entering the residence he realized that all three officers had no cover between them and Parker. He ordered Parker to drop the gun twice, but Parker refused. Darby shot and killed him. Darby also presented testimony from three other law enforcement officers (expert witnesses) who each testified that Parker's refusal to put his weapon down constituted an imminent threat to the responding officers' lives. [2]

After both sides presented their evidence, Darby requested the trial judge to charge the jury as follows: "The reasonableness of an officer's actions in using deadly force must be objectively reasonable judged from the perspective of a reasonable officer on the scene, the fact that officers are forced to make split-second decisions, and in light of the facts and circumstances confronting them at the time.

In support of his requested jury instruction, Darby cited the United States Supreme Court opinion in Graham v. Connor. [3]The trial judge rejected Darbys requested instruction. Instead, the judge provided the jury with a general self-defense instruction that is available to all citizens who assert self-defense as a justification for their actions. This permitted the jury to examine Darbys conduct from the perspective of an ordinary citizen rather than a trained law enforcement officer.

Darby appealed and argued that the trial judge delivered an erroneous self-defense instruction that permitted the jury to ignore, as irrelevant, the expert testimony from several witnesses that reasonable law enforcement officers would believe they were facing an imminent threat to their personal safety.

The decision of the Alabama Court of Criminal Appeals [4]

The Alabama Court of Appeals reversed Darbys conviction and ordered that he receive a new trial. The court ruled that it was not bound to accept Darbys offered instruction that was based upon the Supreme Courts opinion in Graham v. Connor. The court explained that Graham does not govern a state courts application of state criminal statutes because it involved a civil action brought under 42 U.S.C. 1983. (The federal civil rights statute). [5]Nonetheless, the court observed that the Alabama legislature passed a self-defense statute designed for Alabama peace officers that states: "A peace officer is justified in using deadly physical force upon another person when and to the extent he reasonably believes it necessary in order [t]o defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force." [6]

The court ruled that the trial judge erred by giving the jury a self-defense instruction designed for ordinary citizens instead of an instruction intended by the Alabama legislature to be used for peace officers in self-defense situations. The court explained, [T]he Alabama Legislature has made clear that there is a unique standard to be used in judging a police officer's use of deadly force in self-defense or defense of another while acting in his capacity as a police officer. Thus, the proper perspective from which to evaluate a police officer's use of deadly force in such situations is indeed that of a reasonable police officer in the same situation.

The court observed that the ordinary citizen self-defense instruction given to the jury permitted the jury to ignore extensive testimony from multiple witnesses regarding the training a police officer receives with respect to confrontations with an armed person. The court noted that this testimony supported a finding that a reasonable police officer in Darby's situation could have concluded that Parker's conduct represented the imminent use of deadly force. In other words, that testimony supported a finding that Darby acted in self-defense or defense of another when he shot Parker.

Heres a summary of the lessons law enforcement officers can take from this case:

1.It would later be determined that Parker was holding a flare gun that had been intentionally painted black,but there is no evidence indicating that any of the officers were aware of that fact.

2.Quote is taken from the Alabama Court of Criminal Appeals opinion.

3.490 U.S. 386 (1989}. In Graham, the Supreme Court created an objective reasonableness standard for police use of deadly force grounded in the Fourth Amendment. The Supreme Court ruled that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Further, the Court ruled that when police use of force situations are evaluated, the fact that officers are forced to make split-second judgments must be considered.

4.Darby v Alabama, (CR-20-0919) (3/24/23).

5.The Alabama Court of Criminal Appeals determined when reviewing state criminal statutes, it is not bound to follow a constitutionally grounded Fourth Amendment-based opinion of the United States Supreme Court regarding the standard for police use of deadly force. The Alabama court cited a quote from a California case, People v. Perry, 36 Cal. App. 5th 444, 465, 248 Cal. Rptr. 3d 522, 536 n.10 (2019) as authority for declining to follow Graham v. Connor regarding its application to a states criminal statutes. The California court ruled, Perry contends throughout his briefing that we are bound to apply the standards articulated in Graham in this case. Graham was a civil rights action brought pursuant to section 1983 of title 42 of the United States Code and it involved an alleged violation of the Fourth Amendment. Long-standing and deeply held principles of federalism counsel that we have no obligation to import those standards into our state law defining criminal offenses."

See also, People v. Couch, 461 N.W.2d 683, 684 (1990) in which the Michigan Supreme Court rejected the prosecutions argument that the U.S. Supreme Courts opinion in Tennessee v. Garner, 471 U.S. 1 (1985), requires it to change the Michigan fleeing felon rule to comply with the Supreme Courts ruling in Garner, (i.e. Deadly force cannot be used against unarmed and non-dangerous fleeing felons). The Michigan Supreme Court explained that Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court.

The Alabama court did not offer any United States Supreme Court opinion or federal appellate opinion as authority for its decision on this issue. It is unknown whether the federal courts would agree with the Alabama, California and Michigan courts that have considered this issue.

6. 13A-3-27(b)(2), Ala. Code 1975.

7.490 U.S. 386, 397 (1989). See also, recent university law review articles that take the position that state courts are not bound to follow the Supreme Court opinions in Graham and Garner when confronting use of deadly force issues involving state criminal charges directed at police officers. For example, see, Flanders, Chad and Welling, Joseph (2015) Police Use of Deadly Force, State Statutes 30 Years after Garner, Saint Louis University Public Law Review, Vol. 35: No.1, Article 7. And Shah, Raoul, (2018) Licensed to Kill? An Analysis of the Standard for Assessing Law Enforcements Criminal Liability for Use of Deadly Force, Mitchell Hamline Law Journal of Public Policy and Practice, Vol. 39/ Issue 1.

8.The new bill, commonly referred to as AB-392 is found at Calif. Pen. Code 835a (c)(1), (A)-(B).

9.SeeKathleen Y. Murray, Exploring A Necessary Standard For the Use of Excessive Deadly Force by Law Enforcement: A Flawed Solution With Positive Potential,University of Toledo Law Review, Vol. 52, p. 397 (Spring 2021).

10.Calif. Pen. Code 835a (c)(1), (A). Deadly force must be necessary To defend against an imminent threat of death or serious bodily injury.

11.Calif. Pen. Code 835a (e)(2). Based on the totality of the circumstances, a reasonable officer would believe that a person has the present ability to immediately cause death or serious bodily injury.

12.See, Calif. Pen. Code 835a (e)(3).

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