Did the Ninth Circuit err when it held that evidence of prior incidents which indicate that an individual may be mentally ill could be introduced for the purpose of determining whether an officer used excessive force and/or was negligent even though neither the officer nor his department had any prior knowledge of such incidents

QUESTION PRESENTED The question presented is: 1. Did the Ninth Circuit err when it held that evidence of prior incidents which indicate that an individual may be mentally ill could be introduced for the purpose of determining whether an officer used excessive force and/or was negligent even though neither the officer nor his department had any prior knowledge of such incidents. This Court has carefully defined the analysis to be undertaken when considering whether the use of force, whether deadly or not, was “objectively reasonable” under the Fourth Amendment. See e.g., Terry v. Ohio, 392 U.S. 1 (1968); Tennessee v. Garner, 471 U.S. 1, 7-12 (1985); Graham v. Connor, 490 U.S. 386, 397 (1989); Scott v. Harris, 550 U.S. 372, 381-85 (2007). Whether force is “objectively reasonable” is based on the facts and circumstances confronting the involved officer, without regard to the officer’s underlying intent or motivation and must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Based upon the framework that this Court created, an appropriate analysis into the reasonableness of the use of force included factors such as (1) the nature of the crime or other circumstances known to the officer at the time force was applied; (2) whether the plaintiff/decedent posed an immediate threat to the safety of the officer or to others; (38) ii whether the plaintiff/decedent was actively resisting arrest or attempting to evade arrest; (4) the amount of time the officer had to determine the type and amount of force that reasonably appeared necessary; (5) the type and amount of force used; (6) the availability of alternative methods; (7) the number of lives at risk and the parties’ relative culpability; (8) whether it as practical for the officer to give warnings; and (9) whether it should have been apparent to the officer that the person he or she used force against was emotionally disturbed. See e.g., Ninth Circuit Model Jury Instruction No. 9.25; Third Circuit Model Jury Instruction No. 4.9; Eighth Circuit Model Jury Instruction No. 4.40. In this case, the district court concluded that the plaintiff could not testify about her observations of her son on prior occasions during which her son had displayed signs of mental illness because the involved officer did not have any knowledge of her son’s conduct on these occasions and as such, it was not relevant to the issue of whether the force used by the defendant officer was unreasonable and/or whether the defendant officer was negligent. This holding is entirely consistent with the analysis that this Court established in analyzing the use of force under the Fourth Amendment. In complete contravention to the parameters that have been defined by the likes of Graham v. Connor, 490 U.S. 386, 109 8S. Ct. 1865 (1989), and its progeny, the Ninth Circuit in this case concluded that evidence about an individual’s behavior on other iii previous occasions was relevant to a jury’s analysis of whether the officer knew or should have known that the individual was purportedly mentally ill even though the officer had no knowledge of these incidents.