Law enforcement officers are being sued in record numbers fo

Alan K · Post by **Alan K** » Mon Jun 04, 2001 8:55 pm

Many cases have been filed throughout the country including the 1st Circuit Court of Appeals (which covers Massachusetts) that are traumatic to law enforcement officers (LEOs) and to citizens, which have arisen over police encounters with criminal suspects.

It appears that a special set of rules has evolved for law enforcement encounters which differ substantially from ordinary tort and criminal law principles.

LEO’s are subject to civil, civil rights and criminal liability for excessive force and a wide range of other conduct. Citizens have a plethora of remedies to challenge alleged police abuses.

Once again, we have the same standard applied in these types of cases as in other matters which I have reported in the past, and that is the so called “Objective Reasonableness Standard), which may be seen in the case of Seekamp v. Michaud 109 Fed.#d 802,806 a 1997 1st Circuit case.

I have put this subject in Panther’s Tough Issue Forum, because of the following quote from Lawyer’s Weekly newspaper:

“In a split second, law enforcement officers are required to evaluate and instantaneously employ deadly force against criminal suspects to combat apparent dangers to citizens, fellow officers and themselves. The evolving body of use-of-force law mandates a complete factual assessment of the unique facts and circumstances ‘at the moment’, of the particular sue of force.

The law expressly prohibits courts and juries from Monday morning quarterbacking in these difficult cases . See Graham v. Connor, 490 US 386, 396,397 (1989) Roy v. Inhabitants 42F.3d 691 (1st Cir. 1995). Both the Supreme Court and the First Circuit have afforded a comparatively generous standard of reasonableness to the police in cases where potential danger, emergency conditions or other exigent circumstances are present. (Medeiros v. Town of Dracut 21 Fed. Supp. 2d 82, 86 (D. Mass. 1998)”.

In alleged police misconduct cases, the most common complaint is the sue of excessive force.
The central issue is typically whether an objectively reasonable officer could have reasonabley believed that the force employed was appropriate. A balancing testis employed to address the appropriateness if the force used.

The article makes the statement that Law enforcement work is the most potentially deadly type of employment. Officers are required to immediately respond to citizen requests for assistance in life threatening environments in circumstances that are tense, uncertain and rapidly evolving.
They are required by law to engage in defense of others and in self defense, both of which are historically recognized complete defenses to alleged excessive force charges.

A quoted federal case out of the 11th Circuit in Atlanta states that police must pursue crime and constrain violence even if the undertaking itself causes violence from time to time.
In determining reasonableness courts consider a number of factors including apparent dangers, the severity of the suspected crime and whether the suspect is resisting or attempting to evade arrest.

A key tough issue here is that LEO’s are required to react to apparent dangers and apparent weapons because typical conditions and lag time do not allow fro an officer to wait to ascertain a precise weapon with certainty.

Under what circumstances does a mistaken belief that deadly force is necessary subject an officer to civil, civil rights or criminal liability?

Generally if the officer’s mistaken belief is reasonable under the circumstances the officer is not required to await “the glint of steel” before he or she can act to preserve his or her own safety because once “the glint of steel” appears, it is often too late to take safety precautions.

Courts do recognize the practical difficulties of attempting to assess the suspect’s dangerousness. Courts have further recognized that LEO’s are particularly vulnerable to unfounded claims of abuse. Of course officers working in high crime rate are likely subjects to higher numbers of complaints.

Courts have recognized reaction to common gestures fueling the need for the use of force such as sudden movement toward a pocket or waist area. These movements as well as others all of us are able to think of and many more are cited in the article and from actual cases.

If there is an apparent danger to the LEO or to a citizen the LEO is required by law to stop the threat.

It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self defense at the time involved reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken. (citing Tennessee v. Garner 471 US 1 (1985). Even a fleeing misdemeanant may be subjected to deadly force if the misdemeanant poses a threat of death or serious bodily injury to the officer or third persons, deadly force may be authorized.

In the case of Graham v. Connor (cited above earlier) the Supreme Court enunciated the parameters of use of force law.

“The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hind sight. The 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.

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, the 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 court in Graham explained how an officer’s evil intent will not make a Fourth Amendment violation out of an objectively reasonable use of force, nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.

The Graham case holds that we must avoid our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical sanitized world of our imagination to replace the dangerous and complex world of that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.

There are some specific cases and facts cited.

If there is enough interest, we can pursue a second article on the Civil Rights Issues.

Alan K

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"The Goddess of Justice is Blind"

Yosselle · Post by **Yosselle** » Mon Jun 04, 2001 9:31 pm

<BLOCKQUOTE>quote

Originally posted by Alan K: Under what circumstances does a mistaken belief that deadly force is necessary subject an officer to civil, civil rights or criminal liability?

In my opinion, the rules for the use of deadly force should be identical for all civilians (police and non-police alike). Police are just civilians to whom the rest of us have given a uniform and granted the authority and responsibility to arrest wrongdoers and discourage wrongdoing. They should be given no more "slack" in the "mistaken" use of deadly force than anyone else. If I defend myself with deadly force (and actually harm someone), the courts (at least in Massachusetts) begin with the assumption of my guilt. As long as that is the courtroom norm for non-police, it should also apply to police. Until "innocent until proven guilty" is the norm for the all the people, it should not apply to any subset of the people - not even (or especially) the police.

Yosselle

[This message has been edited by Yosselle (edited June 04, 2001).]

Panther · Post by **Panther** » Mon Jun 04, 2001 10:11 pm

<BLOCKQUOTE>quote:<HR>Originally posted by Alan K:

It appears that a special set of rules has evolved for law enforcement encounters which differ substantially from ordinary tort and criminal law principles.

LEO’s are subject to civil, civil rights and criminal liability for excessive force and a wide range of other conduct. Citizens have a plethora of remedies to challenge alleged police abuses.<HR></BLOCKQUOTE>

LEOs are professionals. They are trained in these scenerios amoung the many other types of training they undergo. They are required to learn and understand the ramifications of the use of deadly force and therefore must be and are held to the "higher standard" doctrine. Contrary to the popularly held myth, lawful gun-owners are expected to also have a higher degree of understanding, training and knowledge surrounding the lawful use of deadly force. The "higher standard" doctrine has also held in numerous cases when a lawful gun-owner has had to use a firearm in self-defense.

<BLOCKQUOTE>quote:<HR>I have put this subject in Panther’s Tough Issue Forum, because of the following quote from Lawyer’s Weekly newspaper:

“In a split second, law enforcement officers are required to evaluate and instantaneously employ deadly force against criminal suspects to combat apparent dangers to citizens, fellow officers and themselves. The evolving body of use-of-force law mandates a complete factual assessment of the unique facts and circumstances ‘at the moment’, of the particular sue of force.<HR></BLOCKQUOTE>

Thanks for posting this here... I consider it to be a "tough issue" as well... perhaps only partially in the same light as others however.

I must point out, however (because of part of the previous paragraph and a similar statement that is later in the post), that it has been upheld in many jurisdictions and is in fact considered prime "case law" that police officers are not required to protect private citizens, only "society at large". The courts have consistently held that LEOs have no duty to protect citizens, even if they are witnessing a crime in progress! In fact, a number of lawsuits against LEOs have been undertaken because of the mistaken belief that LEOs have just such a duty... None has ever been successful.

<BLOCKQUOTE>quote

The article makes the statement that Law enforcement work is the most potentially deadly type of employment.

I remember (but don't have any hard cites for it, so I couldn't dispute any disagreements) seeing a study that was done maybe a decade ago that showed quite a few occupations that were more dangerous than being an LEO. IIRC, being an LEO wasn't even in the top 5, but was close... Then again, the second thing that goes is the memory... and I forget the first.

<BLOCKQUOTE>quote

Officers are required to immediately respond to citizen requests for assistance...

Sorry, but that is absolutely untrue, as the courts have consistently held.

<BLOCKQUOTE>quote

... in life threatening environments in circumstances that are tense, uncertain and rapidly evolving.

If and when they respond, that may be true.

<BLOCKQUOTE>quote

They are required by law to engage in defense of others...

Sorry... Not true... (for one example, see Davis vs. District of Columbia) There is no "requirement"... and if an LEO does respond, they can not be held liable for their actions or inactions.

<BLOCKQUOTE>quote

... and in self defense, both of which are historically recognized complete defenses to alleged excessive force charges.

That's true.

<BLOCKQUOTE>quote

A quoted federal case out of the 11th Circuit in Atlanta states that police must pursue crime and constrain violence even if the undertaking itself causes violence from time to time.

Since I don't have the source you're looking at, I can't comment on the case. However, if the 11th Circuit is consistent with everywhere else (which I suspect it is) in erring on the side of the LEOs, then I suspect (no proof, just conjecture and opinion) that the decision did more to protect LEOs from lawsuits than otherwise.

<BLOCKQUOTE>quote:<HR>In determining reasonableness courts consider a number of factors including apparent dangers, the severity of the suspected crime and whether the suspect is resisting or attempting to evade arrest.

A key tough issue here is that LEO’s are required to react to apparent dangers and apparent weapons because typical conditions and lag time do not allow fro an officer to wait to ascertain a precise weapon with certainty.<HR></BLOCKQUOTE>

As happened in NYC with the Diallo case.

<BLOCKQUOTE>quote

Under what circumstances does a mistaken belief that deadly force is necessary subject an officer to civil, civil rights or criminal liability?

In the Diallo case, after an internal investigation, no charges were filed. (Much to the dismay of Al Sharpton and "Jesse"...

)

<BLOCKQUOTE>quote

Generally if the officer’s mistaken belief is reasonable under the circumstances the officer is not required to await “the glint of steel” before he or she can act to preserve his or her own safety because once “the glint of steel” appears, it is often too late to take safety precautions.

As martial artists, everyone here should understand the problem with waiting too long to react!

<BLOCKQUOTE>quote

Courts have further recognized that LEO’s are particularly vulnerable to unfounded claims of abuse. Of course officers working in high crime rate are likely subjects to higher numbers of complaints.

Yep... it stinks, but it's a fact... Just because there are some cases of real abuse, every officer faces the accusation now and every two-bit punk knows how to do the accusing.

<BLOCKQUOTE>quote

If there is an apparent danger to the LEO or to a citizen the LEO is required by law to stop the threat.

Again... Only a half truth. Sorry to keep harping on that, but it is and has been a pet peeve of mine for a long time... and therefore happens to be one of the law enforcement issues that I tend to follow.

<BLOCKQUOTE>quote

Even a fleeing misdemeanant may be subjected to deadly force if the misdemeanant poses a threat of death or serious bodily injury to the officer or third persons, deadly force may be authorized.

(My emphasis added) I feel it necessary to add that emphasis because there is much more to the "fleeing felon" rules for the use of deadly force than the previous statement suggests. Actually, (though I wouldn't recommend it for 99% of the citizenry) private citizens have the same Right/duty/responsibility to stop a fleeing felon given the same circumstances. Naturally, the person with the badge is given more leeway...

<BLOCKQUOTE>quote:<HR>In the case of Graham v. Connor (cited above earlier) the Supreme Court enunciated the parameters of use of force law.

“The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hind sight. The 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.

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, the 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.<HR></BLOCKQUOTE>

The SCOTUS decision specifically addressed the severity of the crime. In fact, SCOTUS decisions disallowed the use of deadly force to protect property or to stop a fleeing theif from taking property. That decision arose (in part) out of a case where officers shot (in the back) and killed a young purse snatcher who was fleeing with a purse containing less than $20. The court held (some would argue "correctly") that the human life of a purse snatcher was more valuable than the contents of the purse.

Good topic. Should gather lots of interest... Thanks again, Alan.

Gene DeMambro · Post by **Gene DeMambro** » Tue Jun 05, 2001 12:37 am

Panther is right. I am reading with great interest, and he has asked the same questions I would have, and made comments in the same places I would have.

Good postings,
Gene

student · Post by **student** » Tue Jun 05, 2001 7:31 pm

Add my name to the list of interested parties.

student

Alan K · Post by **Alan K** » Wed Jun 06, 2001 5:31 am

If we have enough interest in this topic, I can, (a) Cite more cases upon which the author of the article relied; (b) post a new topic on the civil rights aspect that was published as the second part of the Lawyer's
Weekly discussion.

I did like the response of Panther, Yosselle, and Gene. It gets us thinking.

Alan K