Skip to content


By: Dylan Schepers, Volume 107 Staff Member


It was the black of midnight in mid-March 2020. Four police officers approached the front door of an apartment in Louisville Kentucky prepared to execute a drug-related search warrant.[1] Breonna Taylor and her boyfriend Kenneth Walker were asleep just on the other side of the front door in their apartment.[2] The two sleepers were awakened suddenly by a loud pounding on their door. Afraid that someone was breaking in, Walker grabbed his gun. At that moment, the police broke down the door to the apartment with a battering ram, blowing both the door and its hinges straight off.[3] Walker fired one shot from his gun, hitting one of the police officers in the leg.[4] The police responded by letting loose a barrage of returning shots, five of which struck Breonna Taylor.[5] Taylor was dead less than a minute later.[6]

Police hold the power to use force in order to advance the needs of public safety.[7] Such power comes with the possibility for abuse and mistreatment as police consider how much force is needed to address different situations in the field.[8] In the case of Breonna Taylor, many might consider the police returning fire at Walker to be reasonable. The police were confronted by a life-threatening situation, had to make a snap decision, and decided on the use of deadly force. From another viewpoint, however, the police arrived in the dead of night, did not announce themselves, and decided to break into the apartment in perhaps the most fear-inducing and startling way possible. It is fair to question whether the police share any blame for setting up such a dangerous situation which resulted in the purported need for excessive force in the first place.

There is a clear public policy interest in considering the prior actions of police in cases where courts are deciding whether their use of excessive force was reasonable. Police who know their prior actions will be considered in an excessive force analysis will be more cautious, more prepared, and less likely to create a dangerous situation which might escalate the need for heightened force through their own ill-planned or ill-conceived actions. The Tenth Circuit in Allen v. Muskogee was the first to address this issue and ruled that if officers’ prior reckless or deliberate actions creates the need for the use of excessive force such actions should be considered when determining whether that use of excessive force was reasonable.[9] This theory has been named the state-created-need-theory. It both fits comfortably into Supreme Court precedent[10] and has a clear benefit to the public. The Tenth Circuit stands alone in adopting the state-created-need-theory, which has created a circuit split. Some circuits have simply failed to include the prior reckless or deliberate actions of police in their excessive force determinations while others have flat-out rejected the state-created-need-theory. Nevertheless, for both its clear benefit to the public and for the fact that it fits naturally into Supreme Court precedent, the other Circuits and the Supreme Court should follow the example of the Tenth Circuit and adopt the state-created-need-theory.

I. Background: Excessive Force Claims and Graham v. Conner

Citizens have the right to bring excessive force claims against police officers.[11] In the landmark decision Graham v. Conner, the Supreme Court established an objective test which asks courts to weigh § 1983 excessive force claims “from the perspective of a reasonable officer on the scene.”[12] The Court mandates a totality of the circumstances approach which includes consideration of the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[13] Finally, the Supreme Court instructed that consideration must be given to the fact that officers are forced to make quick decisions about the amount of force to use in situations that are “tense, uncertain, and rapidly evolving.”[14] Graham offers significant guidance to the federal courts about how to handle § 1983 claims. However, the Supreme Court offers no direction on whether actions taken by law enforcement proceeding the moment of alleged excessive force should be considered in the courts’ totality of the circumstances analysis. In the wake of Graham, the circuit courts have been left to decide and disagree over this issue.

II. Allen v. Muskogee: The Tenth Circuit’s State-Created-Need-Theory

The Tenth Circuit first considered the question of whether an excessive force inquiry includes actions taken by officers before the use of force occurred in Allen v. Muskogee.[15] In Allen,  police officers Smith, McDonald and Farmer, acting on an outstanding arrest warrant, located Terry Allen parked outside of his sister’s residence on February 20, 1994.[16] Allen had just left his own home after he had an “altercation” with his family and was sitting in his car, gun in hand, contemplating suicide.[17] Officer Smith approached the driver side window and ordered Allen to drop his gun.[18] When Allen failed to react, Officer MacDonald pinned Allen’s left arm, Officer Farmer attempted to enter the car through the passenger door, and Officer Smith made a lunging grab for Allen’s gun.[19] Allen reacted first by pointing his gun toward Officer Farmer who dodged out of the way and then swinging it toward Smith.[20] Shots were exchanged and Allen was hit four times, dying instantly.[21] Allen’s wife Marilyn brought a § 1983 claim against the officers and the court had to apply the Graham objective reasonableness test.[22]

When the Tenth Circuit applied the objective reasonableness test, it articulated its novel state-created-need-theory.[23] The court reasoned that when considering excessive force cases, it is proper not only to consider the officers’ actions in the moment when they had to make a use of force determination, but also to “include their actions in the moments leading up to the suspect’s threat of force.”[24] The Tenth Circuit went further, holding that the reasonableness of the officers’ use of force depended on whether the officers were in danger and whether their “own reckless or deliberate conduct . . . unreasonably created the need to use such force.”[25] The court reasoned that it was necessary to consider the officers’ prior conduct, if that prior conduct was “immediately connected” to the suspect’s threat of force.[26] Although the court did not ultimately  make a merits determination, it found that “a reasonable jury” could conclude that the “officers’ actions were reckless and precipitated the need to use deadly force.”

The Ninth Circuit is the only circuit to consider a similar theory to the Tenth Circuit’s state-created-need-theory. In Cunningham v. Gates, the court stated that its own “danger creation theory” allows consideration of whether an officer’s prior use of excessive force deliberately provoked action on the part of the plaintiff.[27] In Cunningham, the petitioner alleged that the police’s own use of excessive force, openly firing on Cunningham’s vehicle after “boxing in” his vehicle with unmarked police cars, created a situation that provoked him to use his weapon.[28] While the Supreme Court has since overturned the Ninth Circuit’s ruling that a prior instance of excessive force can “render the officer’s otherwise reasonable defensive use of force unreasonable,”[29] it did not hold that it was improper for the Ninth Circuit to consider the police’s conduct prior to the use of excessive force as part of the totality of the circumstances analysis.[30] Nevertheless, since the Supreme Court has abrogated part of the Ninth Circuit’s danger creation theory, the Ninth Circuit should shift its precedent and adopt a position closer to the Tenth Circuit’s state-created-need-theory.

III. Other Circuits Consideration of the State-Created-Need-Theory

While the Supreme Court has not yet decided to rule on the Tenth Circuit’s state-created-need-theory, plaintiffs from several other circuits have attempted to raise the Tenth Circuit’s novel theory to advance their own § 1983 claims. In Malbrough v. Stelly, the Fifth Circuit considered an excessive force claim where the police, who were wearing unmarked uniforms and without announcing who they were, allegedly surrounded a man’s vehicle and shouted at the men inside to exit.[31] The police opened fired on the vehicle when the man attempted to drive away and allegedly hit an officer while doing so.[32] The plaintiff attempted to raise the state-created-need-theory, arguing that the officer’s actions contributed to the driver’s attempt to escape, and should be considered in the excessive force inquiry.[33] The Fifth Circuit flatly rejected the Tenth Circuit’s state-created-need-theory holding that “[i]n the Fifth Circuit, the excessive force inquiry zeros in on whether officers or others were ‘in danger at the moment of the threat that resulted in the officer’s use of deadly force.’”[34]


Police officers operate in an environment that is highly stressful, dangerous, and full of snap-second decisions. They also hold a power we do not give to any average citizen in our country: the power to kill other citizens. While there are clearly situations where it can be an added burden or even an increase in danger to thoroughly, even painstakingly think through the use of excessive force, it is a burden that must be born by the group which wields such power.

The Supreme Court in Graham advanced a totality of the circumstances approach for considering excessive force inquires. If the officers’ own reckless or deliberate conduct during an arrest itself creates the need to use excessive force, this clearly falls within the facts and circumstances that should be considered by courts. Additionally, holding police officers accountable when their actions contribute or even provoke situations which result in the need for excessive force can help combat our country’s rampant issue of police brutality. Adopting a state-created-need-theory can serve as a deterrent for police misconduct by causing police departments to reconsider and implement safer procedures. The Supreme Court should adopt the Tenth Circuit’s state-created-need-theory as a natural extension of Graham for its clear public policy value. Perhaps with this common-sense change, we can avoid another unnecessary death like that of Breonna Taylor.


[1] Richard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, N.Y. Times (Mar. 9, 2023), [].

[2] Id.

[3] See id.

[4] Id.

[5] Id.

[6] See id.

[7] Daniela Oramas Mora, William Terril & Jacob Foster, A Decade of Police Use of Deadly Force Research (2011–2020), Homicide Stud. 1, 1–2 (2022) (compiling a comprehensive review of the literature detailing police use of deadly force from 2011 to 2022).

[8] Id.

[9] Allen v. Muskogee, 119 F.3d 837, 840–41 (10th Cir. 1997).

[10] See Graham v. Connor, 490 U.S. 386, 396–97 (1989).

[11] 42 U.S.C. § 1983 was created to deter government officials from using their authority to deprive citizens of their rights. See 42 U.S.C. § 1983 (1996). Excessive force claims eventually were recognized as one of the deprivations of rights that § 1983 encompasses. See Id.; 119 Am. Jur. Trials 439 § 1 (2011).

[12] See Graham v. Connor, 490 U.S. 386, 396–97 (1989).

[13] See id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure”)).

[14] Id.

[15] Allen v. Muskogee, 119 F.3d 837, 840–41 (10th Cir. 1997).

[16] Id. at 839.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] See id.

[22] See id. at 839–40.

[23] See id. at 840.

[24] Id.

[25] Id.

[26] Id.

[27] See Cunningham v. Gates, 312 F.3d 1148, 1154–55 (9th Cir. 2002).

[28] See Id.

[29] Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 426–427 (2017).

[30] See Id. 426–31.

[31] See Malbrough v. Stelly, 814 F. App’x. 798, 799 (5th Cir. 2020).

[32] See id.

[33] See id. at 803.

[34] Id. (quoting Harris v. Serpas, 745 F.3d 767, 773 (5th Cir. 2014)). The Sixth Circuit likewise rejected the state-created-need-theory along similar lines of reasoning as the Fifth Circuit. In Whitlow v. City of Louisville, the Sixth Circuit disagreed that “all of the actions in which the officers engaged from the preliminary investigation of the matter until the time of the fatal shooting” must be taken into account for an excessive force inquiry. See 39 Fed.Appx. 297, 305 (6th Cir. 2002).