Understanding the Objectively Reasonable Standard 'Overcome Resistance' (Part Three) - Tactics and Weapons - LawOfficer.com

Understanding the Objectively Reasonable Standard 'Overcome Resistance' (Part Three)

 


 

Curtis J. (Jeff) Cope | Joe Callanan | Tuesday, September 22, 2009

Your authors entered the law enforcement profession in the late 1960s, at a time when police work was frequently considered a contact sport. Recruits were generally large, Caucasian males with prior military service and perhaps a GED certificate or high school diploma.

Most states were in the earlier stages of establishing minimum hiring and training standards for law enforcement positions. Impact weapons consisted of straight hardwood batons, saps and the occasional flashlight. Firearms revolved with six rounds chambered and perhaps another twelve rounds in a dump pouch affixed to a Sam Browne belt, some of which were further secured by a garrison strap across the officer s chest. The common holsters available were either a cross draw or a clam shell type both void of any safety features and a Jordan type that secured the firearm into the holster with a single strap/snap fixed behind the hammer of the revolver.

Police vehicles were called radio cars because it was the car not the officer that held the communications. Juvenile subjects had no articulated rights, and possession of marijuana or a marijuana seed was a felony crime. Persons in the country illegally were quickly arrested, turned over to the federal authorities and deported on the same day. Hot Sheets were issued three times a day, and they listed stolen cars alphanumerically by license plate. Few patrol officers really understood the definition ofprobable causeor the difference between an arrest and a detention.

A new U.S. Supreme Court ruling required officers to advise persons arrested that they had the right to remain silent. There was a well-grounded belief that the badge worn was a badge of honor and authority, not something to be taken lightly. Police salaries in the better-funded departments were in the $600 700 per month category and each officer had to purchase their own uniforms and equipment. Police policy consisted of two instructions: 1) do the right thing, and 2) just do your best. Talk about the good ol days of policing.

The 1970s saw a plethora of new training programs, legal education, salary enhancements and a steady march toward true professionalism. In the cities and other populated areas, many departments underwent growth and development. Federal civil rights and case rulings began to frame legitimate police authority and restrict police misconduct, be it intentional or inadvertent. Social values changed significantly and the task of policing became much more precise and technical.

The point:In the 30 or so years proceeding the turn of the century, law enforcement officers were granted rather broad authority to carry out their assigned duties and to use force when necessary to overcome resistance. In effect, the intuitive or practical knowledge concerning police use-of-force evolved slowly and certainly in the 1980s and 1990s into a very precise, technical and codified body of laws, particularly at the federal level.[1]

For those seasoned officers specifically assigned to tactical and/or training duties, it was becoming increasingly clear that several factors other than the traditional state penal codes were influencing the speed and direction of the push for greater professionalism within the law enforcement community. This long-term observation has run a full course in terms of search and seizure, arrest and detention, and the escalation and de-escalation of force.

Marching to the Federal Court s Drumbeat
One of the most significant changes or evolutions affecting the law enforcement community has been the steady drumbeat of the federal court in matters concerning the apprehension and post-arrest treatment of criminal suspects. What had previously been accepted and practiced under state-level regulation of police use-of-force was eventually recast to better comply with newer, over-riding federal guidelines.An example:The 1975Downs v. United Statesruling placed a significant and still-applicable ruling of law concerning the limitations to the police authority to legitimately use force in overcoming resistance.[2] In that case, an assembly of state and federal officers charged a high-jacked airplane and engaged in a firefight that left the suspect, the hostages and some officers either dead or injured. After a lengthy trial, the court determined that the police tactic was simply a plan of attack only, not a plan of apprehension or rescue. This was the first contemporary notice to law enforcement that the authority to use force had certain limitations, a concept not yet contained in typical police policy or training.

Remember: If you re a practicing professional peace officer, you have the vested authority to use objectively reasonable force to overcome resistance, but that authority has limitations predicated on the totality of the circumstances and the level of resistance projected by the offender. In simple terms, a motorist refusing to sign a traffic citation differs greatly from a fleeing bank robber armed with a handgun.

Perhaps the most common display of active resistance occurs when the person to be detained or arrested attempts to evade police and thereby attempts to avoid or evade being taken into custody. Many of these flight responses are simply foolish acts while others may be far more calculated and dangerous. Studies across the U.S. demonstrated that such the same fleeing suspect might be allowed to escape in one jurisdiction and be shot dead in another. Obviously, the regional disparity of the deadly force practices created a federal issue that was resolved in the 1985Tennessee v. Garnerruling, which set certain criteria that must be applied before a law enforcement officer can deploy deadly force or great force to stop a fleeing suspect or to effectuate a retaking of an escapee.[3] Interestingly, some of the states had already addressed the so-called fleeing felon rule by restricting the police authority in such circumstances.[4] In effect, the federal law becamethelaw of the land and all law enforcement officers were bound to a common standard concerning the use of force to overcome this particular variety of resistance.

The federal drumbeat continued during the 1980s and throughout the 1990s, so much so that your authors began to describe this evolutionary process as the federalization of force. Both the U.S. and Canada have now adopted national laws that grant certain authorities to police while also placing defined limitations to that authority. It s within the context of these federal laws that the reasonableness of a police use-of-force will be examined.

Objectively Reasonable Force
If you were paying attention to the federal drumbeat, you certainly couldn t have missed the deafening roar of the 1989Graham v. Connorruling, in which all matters and contests concerning the police use-of-force was clearly assigned to a Fourth Amendment-analysis.[5] In this ruling, the court elected to defineobjectively reasonable forcewhile declining to offer a more speculative definition ofexcessive force,thus leaving the latter to the states legislative and/or judicial processes. In doing so, the high court crafted a positive instruction rather than a negative one.

The first significant and perhaps most important effect of the combined federal rulings is that law enforcement officers are empowered as a matter of law to employ objectively reasonable force. This seems rather obvious given that the termlaw enforcementactually contains the core wordforce.In the ruling, the high court noted that all arrests include the authority and some application of force. Even the completely compliant, non-resistive subject who turns around as directed and submits to the handcuffing has experienced some (low) level of force by virtue of the officer s presence and the verbal command to surrender to the arrest. Most working officers fail to recognize that such an uneventful apprehension actually involves a low level of force. Studies and research indicate that a greater majority of arrests are conducted and completed with such low-level, non-injurious force applications.[6]The bottom line:The high court ruled that the very authority to arrest included the authority to employ objectively reasonable force.

The second and equally important effect of the combined federal rulings was to establish an overriding constitutional standard that applies to all law enforcement officers, regardless of agency or jurisdiction. Simply stated, a city police officer has exactly the same use-of-force authorities and limitations as does a county deputy, a state trooper or a federal agent. This obviously addresses the equal protection and due process concerns, but it also clarifies the policy, training and procedure issues across the entire law enforcement community. A similar national standard was created in Canada and has greatly improved the police training and functionality throughout the Canadian provinces.[7]

Benefitting Today s Law Enforcement
The high court s establishment of the objectively reasonable standard can only be viewed as a practical benefit to today s law enforcement at every level, from the newest recruit in basic training to the more experienced department head. Essentially, the objectively reasonable standard recognizes that police officers are required to make split-second decisions in circumstances that are tense, uncertain and rapidly evolving. [8] In this ruling, the high court recognized that police officers can t be held to a perfect standard because frequently they re thrust into dynamic and dangerous situations and are expected to make rapid assessments without the benefit of lengthy processes. They re even sometimes required to act or react in heartbeats of time with the real potential for the loss of life or serious injury. The high court did not and does not demand perfection.

In one fatal shooting incident, the case assessment ultimately rested on the opinion that the decedent subject was constitutionally entitled only to a reasonable police response and not to a perfect or best practices response when, in fact, she produced a handgun in a seemingly threatening manner as a team of police officers approached her parked vehicle in an attempt to disarm her and secure her safety.[9]

In another fatal shooting incident, the Court determined that the use of deadly force by multiple officers attempting to apprehend a knife-wielding subject outside of a local Court building was objectively reasonable to the circumstance even though otherless intrusivemeans were potentially available.[10] In this particular case, the ruling noted that the responding officers had no duty to experiment in the face of danger and that the subject himself had no constitutional right to a less lethal application of force while presenting an obvious life-threatening danger to the involved officers.

The Miller and Reynolds cases are presented here to demonstrate that, although both incidents culminated in a tragic death and other alternative police alternatives were potentially available, the final legal assessment was based on the objectively reasonable standard of care.

An Exercise
A patrol officer responds to a petty theft call at a local gas station and convenience store with the suspect vehicle described. Enroute, the officer spots the described getaway car driven by a lone male subject. The officer does a U-turn and then accelerates in an attempt to close in on the suspect vehicle only to see the suspect make a rapid right turn into a side residential street. Rounding the corner, the officer observes the same male exiting his vehicle and running away from the approaching police vehicle. The officer takes a standing position alongside his police vehicle, draws his duty weapon and points it at the running male while issuing a loud verbal command, halt police.

Now that you ve read the scenario, answer the following questions:

Question 1: Under these exact conditions, would you fire at the fleeing suspect?

Question 2: Under these exact conditions, would you expect another officer from your department to fire at the fleeing suspect?

Question 3: Does your department s policy permit or prohibit your use of deadly force under these exact conditions?

Question 4: Has your law enforcement training, either basic or advanced, provided you with any instruction concerning your use of deadly force under these exact circumstances?

The first question asks if you would use deadly force in such a circumstance. If you ve been properly trained and have gained valuable field experience, you already know with a great amount of certainty that you wouldn t and shouldn t fire for a variety of reasons. If you believe that you might have fired or would have fired under such a circumstance, you really ought to seek some other type of employment. As poised, the first question doesn t indicate a serious felony crime or an assaultive, threatening subject. The deliberate use of deadly force under the described circumstance wouldn t comport with legal standards or professional standards and would be completely disproportionate to the crime (actual or perceived). Shooting at such a subject would be clearly inconsistent with the federal rulings governing the police use-of-force.

The second question builds on the first. In the first question, the presumed response yes or no would represent a subjective opinion. But the second question asks specifically about the response expected if another officer from your department faced with the same circumstance would or wouldn t fire at the fleeing suspect. This now calls for an objective opinion. Remember that the real-world standard of care is solidly based on the objectively reasonable standard as articulated in the federal rulings.

The third question attempts to determine if your agency has a policy either permitting or prohibiting such a use of force. If the policy exists and it is permissive, there would be an extensive exposure to criminal and civil liability associated with what appears to be a patently unconstitutional policy and practice coupled with a deliberate disregard for the rights of the involved suspect or any protected class that he might be associated with. If the policy exists and it clearly prohibits the use of deadly force while attempting to arrest a person wanted solely on misdemeanor charges, then the policy would appear consistent with federal guidelines and today s police procedures. If no policy exists, then the agency would likely fall into the often-cited deliberate indifference category.

The fourth and final question attempts to identify specifically what instruction has or hasn t been provided to the line officers. Again, the answers may reveal training inadequacies, incompetent management and evidence of deliberate indifference.

In Sum
This writing is intended to increase your individual and departmental awareness of the constitutional authorities and limitations concerning the police use-of-force. Looking at the historical perspective of the 1960s and studying the present state of law enforcement knowledge and practice with a broad view toward the future, it s imperative that each and every officer at every level of the agency fully understands and complies with the objectively reasonable standard.

 

References

  1. 1. Downs (1975), Garner (1985) and Graham (1989)
  2. 2. U.S. Sixth Circuit Court
  3. 3. U.S. Supreme Court
  4. 4. CA Supreme Court, Peterson (circa 1965)
  5. 5. U.S. Supreme Court
  6. 6. Use of Force By Police, U.S. DOJ/NIJ (1999)
  7. 7. Use of Force Framework, Chris Lawrence, Ontario Police Academy
  8. 8. U.S. Supreme Court,Graham v. Connor(1989)
  9. 9. Tyisha Miller, Riverside, CA PD (1998)
  10. 10. U.S. Ninth Circuit Court, Reynolds v. San Diego (1996)
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Curtis J. (Jeff) CopeCurtis J. (Jeff) Cope is a retired police lieutenant from the City of Huntington Beach (Calif.) with more than 29 years of active law enforcement service.

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Joe Callananis a retired sheriff's lieutenant from the County of Los Angeles (CA) with an extensive patrol background including SWAT and special operations.

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