"a standard of what you believe is reasonable". Yes, if a bad guy pulled out a toy gun and I couldn't tell the difference, and therefore reasonably believed my life was in danger, I have a pretty good defense. But in most of the instances, they didn't pull out a toy gun, they merely went to their waist, pulling out nothing except maybe their d$%^. I think in most states if I shot a unarmed man who had not hit or attacked me, and my defense was, well, "he was going for his waist" I would be locked up as a private citizen for a long time.... Police get off, and maybe rightfully so.
http://www.fletc.gov/training/programs/legal-division/podcasts/fletc-legal-division-use-of-force/use-of-force-part-1-transcript.html/Bobby: Let’s move on. We’ve defined a seizure. We said that if a plaintiff sues a defendant for using excessive force, the issue in the case is whether the force was objectively reasonable. That’s from the Supreme Court case, Graham v. Connor. The Supreme Court told us that a seizure under the Fourth Amendment must be objectively reasonable. That is the key to the Fourth Amendment -- reasonableness.
Tim: Did the Court say we had to be perfect, Bobby?
Bobby: No; we know better than that. None of us are perfect. The force must be reasonable. The Court acknowledged that seizures are made under circumstances that are tense, uncertain, and rapidly evolving. The Court will not require us to be perfect; just reasonable.
Tim: And just how is a court supposed to make that determination?
Bobby: By examining the totality of the facts and circumstances. If a plaintiff sues a defendant police officer for excessive force, the court must look at all the facts. It will examine the facts presented by the plaintiff. It will consider the facts presented by the defendant officer. The issue will be whether based on the totality of the facts and circumstances, the force was reasonable.
Tim: The court recognized that the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. So, proper application requires careful attention to the facts and circumstances of each case. Bobby, you said objective reasonableness. Explain that.
Bobby: The court looks at the facts through the eyes of an objectively reasonable officer. Could a reasonable officer find that the force used was reasonable, based on the totality of the facts and circumstances. An objective standard is based on fact.
Tim: I think it’s important to remember our roles in the courtroom. Cops state the facts. Judges make conclusions, based on those facts. The court doesn’t care that the police officer believed that “the suspect was dangerous” or that “the officer felt his life was in danger.” Those are mere conclusions. What are the facts that would allow the judge to come to those conclusions?
Bobby: The court looks at the totality of the facts and circumstances from the perspective of a reasonable officer on the scene. It examines the facts the officer had up until the moment of the seizure. What facts justified the initial stop? What facts justified handcuffing? Spraying the suspect with OC? What facts justified pulling the trigger? We ask whether each of those seizures was reasonable. The court examines the facts that were available to the officer. The court doesn’t judge the officer based on 20/20 hindsight.
Tim: What’s 20/20 hindsight, Bobby? Tell us a little about that.
Bobby: Courts don’t look at the facts that the officer learns later. The facts might be that the officer shot a robbery suspect after the suspect pulled a pistol from his pocket and pointed it at the officer. It’s not relevant that the officer later learned that the handgun was unloaded – or a toy.
Tim: When a LEO uses force, it’s typically done under situations that are tense, uncertain, and rapidly evolving.
Bobby: And the Supreme Court told the lower courts to take THAT into consideration. In determining the reasonableness of force, courts must allow for the fact that law enforcement officers are often forced to make split-second decisions – and like Tim said -- under circumstances that are tense, uncertain, and rapidly evolving.
Tim: What else does a court take into account in determining the reasonableness of force?
Bobby: In Graham v. Connor, the Supreme Court gave us four major factors that may be used in determining what level of force is justified in a use of force encounter. We sometimes refer to them as the Graham factors.
Those factors are:
• The severity of the crime
• Whether the suspect is an immediate threat to the safety of officers or others
• Whether the suspect is actively resisting arrest
• And whether the suspect is evading arrest by flight
Later, after Graham v. Connor, the courts added additional factors to determine whether the force used in a particular situation was reasonable. These additional factors included such things as:
• The number of suspects and officers involved.
• The size, age, and condition of the officer and suspect
• The duration of the action
• Previous violent history of the suspect, known by the officer at the time
• The suspect’s mental or psychiatric history, known by the officer at the time
• The use of alcohol or drugs by the suspect
• The presence of innocent bystanders
• The availability of other weapons (chemical sprays, batons, tasers)
Tim: Let’s look at Graham v. Connor. Bobby and I are going to change some of the facts so that you can better understand how a court might determine whether the force is reasonable. You be the judge. Consider the facts we give you. First, listen to Mr. Graham’s side of the story as I tell it. Then listen to Officer Conner.
I’ll be Mr. Graham. I’m a diabetic. One day I felt the onset of an insulin reaction, so I called my friend Berry and asked Berry to take me to a convenience store to buy some OJ. The OJ counteracts the insulin reaction. Berry came over and we sped off to a convenience store. Once at the store, I jumped out and ran inside. But, the line was too long. I couldn’t wait. So I ran back outside, jumped in Berry’s car, and we sped off for a friend’s house.
Then a police car pulled us over. The officer felt that we might have robbed or stole something from the convenience store. Berry tried to explain my condition; but the officer wouldn’t listen. The officer said he was going to hold me until backup could go back to the convenience store and determine whether a crime had been committed.
I guess I panicked. I got out of the car and ran around it. The next thing I knew I was being handcuffed and thrown into a police car. I got hurt. I sustained a broken bone in my foot, cuts on my wrists, bruised forehead, and a persistent ringing in my ears.
Bobby: Don’t make up your mind, yet. Now look at the facts from the perspective of a reasonable officer on the scene. Connor saw Graham run into the convenience store and rush back out. Police reports stated that there had been several robberies and shoplifting incidents in convenience stores in the area over the past three months. Based on those facts, could a reasonable officer conclude that Mr. Graham had committed a crime. If so, the officer could stop or seize him – and use reasonable force to do so.
Tim: And with facts to justify the stop, the officer can also hold a suspect for a reasonable period of time to confirm or deny the suspicion.
Bobby: And that’s what the officer did. Officer Conner held Mr. Graham and his friend Berry for about 20 or 30 minutes, a reasonable period of time for a backup officer to go back to the convenience store and see if the store was robbed.
Tim: Now, Officer Conner could also order Mr. Graham and his friend to remain in the car.
Bobby: And Mr. Graham disobeyed that order. Mr. Graham got out the car and ran around it. Officer Conner also smelled an odor on Mr. Graham’s breath that Conner believed was alcohol. (Incidentally, a diabetic’s breath may smell sweet, or similar to alcohol.)
Tim: Police statistics have stated that as many as 80% of the assaults on police officers are by suspects under the influence of alcohol or narcotics.
Bobby: With those facts, Officer Conner could use reasonable force to control Mr. Graham. Conner grabbed Mr. Graham, pushed him against the car, and handcuffed him.
Tim: So, you be the judge. Was the INITIAL stop reasonable? In other words, could a reasonable officer on the scene believe that Mr. Graham committed a crime at the convenience store? And, could the officer hold Graham for a reasonable time for backup to check out the convenience store? Based on the facts that I’ve presented, I think so.
Bobby: And what about the handcuffing. Could a reasonable officer on the scene believe that grabbing and handcuffing Graham was reasonable, after Conner ordered Graham to remain in the car and Graham jumped out? I think so. Let’s look at some factors to consider:
• The officer had facts to believe the suspect committed a crime – maybe larceny or even robbery.
• When Graham jumped out of the car, the officer had facts to believe that Graham was a threat to the officer.
Tim: Look at some additional factors:
• Consider the number of suspects and number of officers at the scene.
• Consider the fact that Officer Conner smelled what he believed was alcohol on Graham’s breath.
Tim: Bobby, let’s talk about a couple of myths. Does an officer need PC to arrest a suspect before the officer can use handcuffs?
Bobby: No. I’ve heard people say that putting handcuffs on a suspect automatically turns a seizure into an arrest. That’s not true. Handcuffing someone is a seizure. And, the seizure must be reasonable. Handcuffs, alone, will not convert a seizure into an arrest requiring PC.
Tim: What if a police officer points a weapon at someone. Does an officer need PC to pull his weapon?
Bobby: That’s another myth. Pointing a weapon at someone is a seizure, assuming the suspect stops and submits to the officer’s control. The seizure has to be reasonable. Many times officers will pull their weapons when they have a reasonable suspicion (NOT PC) that someone is armed and dangerous.
Tim: Bobby, was Mr. Graham actually a diabetic? In other words, when Mr. Graham told Officer Conner that he was simply suffering from an insulin reaction and that he needed the Orange juice to counteract the reaction, was he telling the truth?
Bobby: Yes; Mr. Graham was telling the truth. Mr. Graham was actually a good guy. However, we don’t judge the officer based on what he learns after the fact.
Tim: I’ve had students argue in class that if they were the officer on the scene, they would have looked at Mr. Graham’s medical card -- indicating that he was a diabetic -- and that if they saw the medical card -- they might have believed Mr. Graham’s story. That’s a subjective standard. What you would have done is subjective, and not relevant. The issue is whether a reasonable officer on the scene COULD have believed that the force was reasonable.
Bobby: That’s enough for now. We’ll see you when we come back. Next we will talk about deadly force and when it is objectively reasonable.
