Tuesday, December 30, 2014

Police Use of Force: Deferential Legal Standards

Editor’s Note: This is part one of a two part blog post examining police use of force. Part one examines the deferential legal standards applied to police use of force. Part two will be published next week and will examine the relationship between officer training and police use of force.

In December 2009, Albuquerque police responded to a domestic violence call where they discovered a man had doused himself in gasoline.  Several police officers managed to place the man in handcuffs and removed him from the apartment.  The man resisted the officers by banging his head against the wall.  In response, several officers used their Tasers in drive-stun mode[1], setting the man on fire.  This account is one of many examples listed in the 2014 Department of Justices civil investigation into the practices by the Albuquerque Police Department (APD).  The findings concluded the department engaged in a pattern or practice of excessive force--in many cases deadly force--violating the Fourth Amendment’s right to be free from unreasonable seizures.
This is one of many examples nationwide where police officers are inadvertently escalating situations which in turn allows officers to use more serious uses of force.  Particularly with the introduction of non-lethal devices such as Tasers, officers are more frequently using force when encountering an obstinate or difficult citizen.  These tactics, however, are dangerous as they quickly escalate police encounters, leading to the officers perceiving a greater threat from citizens.  As a result, these instances can result in police using deadly force on citizens, even though the citizen posed no similar threat to the officer.
A recent study revealed, that 84% of all persons who came into contact with the police believed the police acted improperly.  Yet, only 14% of those persons filed a complaint.  Of all the complaints brought, 95% had insufficient evidence to sustain a claim that the officer used unreasonable force.  These statistics do not necessarily invalidate the citizens complaint.  These studies are accompanied with the caveat that because the definitions and measures of force vary greatly among jurisdictions[2], there can be no way to definitively say how many instance of force by police are in fact unreasonable.  For instance, the Police Executive Research Forum (PERF) study on APDs use-of-force policy showed that police shootings increased despite a downward trend of violent crimes committed against officers.
In other cases, police unilaterally escalate an encounter from the start. For example, a SWAT team conducted a midnight raid of a Detroit home where seven year-old Aiyana Stanley-Jones was asleep on the couch.  There was no immediate danger of bodily harm to the officers posed by anyone located within the home.  Before entering the house, the police threw a flash-bang grenade into the living room, lighting Aiyana’s blanket on fire. Police then entered the house and shot once, killing Aiyana. Aiyanas death was the result of aggressive behavior initiated by the police.  The SWAT raid was conducted to execute an arrest warrant, something the police could have done during the day, in public - without need for flashing grenades.  Yet, while these police-escalated events take place, the law prevents a victims effective recourse.
This two-part blog post does not assert that in all cases police intentionally escalate situations to use lethal force every chance they get.  Whether it be inadvertently or intentionally, the central premise is that both a lack of proper training by police departments and a deferential legal standard has made it increasingly easy for police to unilaterally escalate encounters without any opportunity for accountability.

I.       Deferential Legal Standards
Over the years, the Supreme Court has formulated standards governing the permissible uses of force by police officers.  The Supreme Court held deadly force is not a permissible use of force unless it is necessary to prevent a suspects escape and the officer has probable cause to believe the suspect poses a significant threat of death or serious bodily harm to the officers or others.  In Tennessee v. Garner, the court created a balancing test to determine the reasonableness of future instances of force.  This test pits the personal interests of the suspect against the governments interest to effective law enforcement. Today, this balancing test has evolved into an overall reasonableness test where the amount of force used by an officer must be reasonable in light of the threat and danger posed.[3]
The case law is clear, however, that so long as an officer has a reasonable belief that her life or others is in danger[4], the use of force used (including deadly force) will likely be proportionate in light of the governments interest in effective law enforcement.  However, a police officers intent or motive behind the use of such of force is immaterial to the reasonableness inquiry.[5]  While a fact specific analysis is an important opportunity to meaningfully question an officers use of force, a reasonableness determination tends to be deferential towards the police officer simply because the boundaries of the vague, yet compelling interest of effective law enforcement administration have not been clearly defined.  Often times, the facts used by judges in their rulings are the ones alleged in the incident report filled out by the very police officer whom the defendant may allege escalated the situation.
Further, without being able to consider the subjective intent of the officer, the judge is left with an objective inquiry that fails to consider important, extrinsic facts such a race, age, personal experience, all of which may influence how a police officer reacts in any given situation.  These subjective factors are just as relevant as the objective ones.  For the Supreme Court to remove the intent of the officer is to remove vital, informative aspects to determining whether an officer was justified in using force.
Lastly, it is very easy for an officer to have a reasonable belief that her life is in danger.  Especially given the nature of the work, there is much to give an officer cause to be afraid for her life.  As such, some will act preemptively for fear that the citizen will try to harm the officer first.  This mentality is understandable; however, it is dangerous and potentially destructive, leading to a culture of Us vs. Them, when policing should be community-oriented and not merely preventative.  Officers assume their role willingly as a profession.  The universal slogan adorned on many police cars nationwide To serve and protect is often read as just To protect.  Yet, in light of the recent events from Ferguson, Cleveland, and New York City, many ask, Whom are the police protecting?

Robert Maes
Staffer, Criminal Law Practitioner

[1] Meaning that they applied the Taser directly to his body instead of firing prongs from across the room.”
[2] See generally, Bureau of Justice Statistics, Use of Force materials, http://www.bjs.gov/index.cfm?ty=tp&tid=703
[3] See Scott v. Harris, 550 U.S. 372 (2007) (We must slosh our way through the fact bound morass of reasonableness).
[5] Graham v. Connor, 490 U.S. 386, 397 (1989) (the question is whether the officers actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation). 

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