Michael J. Hostler
Use Of Force
The question of how to determine the amount/type of force necessary to protect yourself, to protect the public, and to perform the duties you are expected and required to perform is a constant question. However, with the recent shootings in Colorado, Connecticut, and the Boston bombing we must think about “what would I do in a similar situation?”
First of all, we must look at the big picture. The events mentioned above all happened in different States with different views. However, the United States Supreme Court offers guidance in the case of Graham v. Connor, (490 U.S. 386 (1989).
In this case, Mr. Graham, a diabetic, asked his friend to drive him to a convenient store so he could buy some orange juice to counteract the onset of an insulin reaction. When Graham entered the store, he saw that there was a long line and decided to leave (in a hurry) and have his buddy drive him to another friend’s house instead.
Connor, a Charlotte police officer, saw Graham enter and then quickly run out of the store. Connor was suspicious of this behavior, so he made a traffic stop of the car. Connor had the occupants sit on the curb while he went to the car to check if anything happened at the store.
When other officers arrived on scene, Graham ran around the car twice before sitting on the curb. Graham’s friend explained Graham’s diabetic condition and asked if they had sugar or juice for him. One of the officers said that he had seen diabetic problems before, but felt Graham was just plain drunk
The officer rolled Graham onto his face and cuffed him. He was thrown onto the hood of the car, and then they threw him into the cruiser. Conner finally verified there was no crime at the store and gave Graham a ride home. However, between the time Connor made the initial stop, and the time he gave Graham the ride home, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder. He also claims to have developed a loud ringing in his right ear that continues to this day because of this investigatory stop.
Graham brought suit against the individual officers involved in the incident, alleging that they had used excessive force in making the investigatory stop, in violation of rights secured to him under the Fourteenth Amendment to the United States.
The District Court used the four-step test that was being used at the time. The 4 steps are:
(1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) "[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.”
The case eventually found its way to the U.S. Supreme Court which held:
“Today we make explicit what was implicit in Garner's analysis, and hold that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a (free citizen*) should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.” (*in short, a Free Citizen is a person not yet confined or convicted).
The reasonableness of a particular use of force must be judged from the totality of the circumstance as known by the officers at the moment the force is used. So the Court further stated:
“Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," however, its proper application requires careful attention to the facts and circumstances of each particular case, including 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. The question is whether the totality of the circumstances justifie[s] a particular sort of. . . seizure".
The Court further reasoned that information learned after the officer uses the force is irrelevant to assessing the appropriateness of the officer’s use of force. What counts in our law is the perception of the officers on the scene at the moment force was used, rather than with 20/20 hindsight. The Court also stated that allowances must be made for the fact that:
“…Officers are often forced to make split-second judgments-in circumstances that are tense, uncertain and rapidly evolving-about the amount of force that is necessary in a particular situation.”
It is obvious that there is always more than one way to “skin a cat”. However the situations we deal with are changing by the second, when you decide you need to use force, by all means use it, but be sure it is reasonable.
The Court also states that not only does the Fourth Amendment apply to use of force cases with the objective reasonableness test of the Graham case, but also the less restricted and subjective standard of “shock the conscience” applicable to the Eighth and Fourteenth Amendments, (which applies to detainees, and people who are convicted and incarcerated). The subjective element of this test is determining if the officer’s use of force was applied in good faith or maliciously and sadistically for the purpose of causing harm.
Law enforcement, which includes corrections, road patrol, and dispatch, is a business where all employees deal with people who can change their demeanor from zero to sixty in a matter of seconds. We have witnessed first-hand and have seen the cornucopia of television programs that contain actual footage of real cops, corrections officers and dispatchers on the job.
We all know that the friendly demeanor and cooperative nature of a suspect may suddenly place his car in drive as you walk back to your cruiser. We also know that the suspect who places his hands over his head with a smile on his face can suddenly reach down for a knife. These individuals suddenly create more danger to the public, the officer, and themselves than before they were initially stopped. In a jail, convicted inmates refuse to obey orders and directives from officers.
The U.S. Supreme Court’s opinion in Graham points out a simple fact; the totality of the circumstances must be examined when considering use of force by police and corrections officers in the United States. The Court’s holding that the reasonable officer on scene and the circumstances that are tense, uncertain and rapidly evolving, all of these factor in. These are the legal standards for use of force in this Country. What counts is the perception of the officers on the scene at the moment force was used, rather than with 20/20 vision of hindsight.
Under Graham, an officer's use of non-deadly force is reasonable if the jury is merely persuaded that a reasonable officer in the same situation could have believed the same force was necessary or in other words "reasonable under the circumstances." Bottom line, the old using no more force than was "reasonable and necessary," is still the best option.
Of course, the standard for use of deadly force is more stringent. The Court found in Tennessee v. Garner, 471 U.S. 1 (1985), that there are circumstances when an officer can use deadly force. One example would be whether the officer could reasonably have had probable cause to believe that the suspect posed a threat of serious physical harm, either to the officer or to others. Also an
Officer’s use of deadly force exists where there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.
Recently, in State v White, 2013 Ohio 51 Court of Appeals of Ohio, Sixth Appellate District, Lucas County, the Court stated:
“Given that a police officer is authorized and, is frequently obligated to use force (sometimes deadly force) the benchmark of the "objectively reasonable officer" is not just appropriate for criminal prosecutions, but necessary. Unlike the reasonable person (civilian) standard, the reasonable officer takes into account not only the specialized training and experience of police officers, but also the public-safety role for which they are uniquely employed. In that sense it is a more tailored standard than what suffices for tort law - because in circumstances relevant to the law enforcement function, the reasonable officer can do more than the reasonable civilian. But if federal use-of-force law applies to the prosecution of a police officer for an alleged misuse of force on duty, then all of its doctrines, standards and derivative rules apply to the extent their use is supported by the evidence and is consistent with the nature of the crime charged”. (Note: This case has just been appealed to the Ohio Supreme Court and we will update on the outcome).
Finally, Graham explicitly cautions deference to the law enforcement perspective:
"Not every push or [**51] shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. Calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.”
Last Updated (Friday, 14 June 2013 09:02)