Articulating Use of Force in the Field and in the Courtroom

Posted by Michael D. Schwartz, Esq.

I. INTRODUCTION: Another day, another headache. What began as a run-of-the-mill arrest of an Estes’ robbery suspect has quickly turned into an unruly, violent confrontation in the patrol car, the sally-port and the hallway. Out of breath, tired, bumped and bruised, you finally get the guy into the booking cell. No time to catch that breath, however, because no sooner is he in the cell than he’s busy kicking, punching, and banging his head against everything he can (and since the cell is nearly all concrete, there’s not much room for choice there). To top it off, he’s seventeen – a minor. The obvious quandary: go in there and get him to stop hurting himself, before you end up with angry parents, angry administration and a lawsuit, and risk more of a confrontation and use of force, or let him “blow off steam,” i.e., no confrontation, allowing you to fast-forward directly to that lawsuit and IA? Whatever you choose, you better be able to articulate that decision, and especially any use of force with more descriptive adjectives than, “combative,” “non-compliant,” or, “resistive.” Bear in mind that your description will not only be reviewed by a supervisor, filing Deputy District Attorney, or Trial Deputy but, in the current climate it more likely than not will also be reviewed by a City Attorney or Deputy County Counsel, Police Chief or Sheriff, and in some cases a District Attorney determining whether to file charges or issue a Brady ruling against you! Now, then, more than ever, your choice of words and description of your state of mind has a direct effect on your future, administratively, civilly and criminally. And outside of an academy class or a WPIP (Work Performance Improvement Plan), has anyone ever really sat you down and prepared you to successfully articulate your decision in a way that secures not just this arrest, but you and your family’s futures as well?

Over the years I’ve dissected and defended officers’ use of force in internal affairs’ investigations, arbitrations hearings, court hearings and jury trials, as well as Brady reviews. If there is one common theme for the majority of those cases that wind their way into the “problem pile,” it is poor articulation of not only the force itself, but of the mind-set and the facts confronting the officer that led up to the decision to use force. The hope is that this multi-part series of articles will begin to educate officers and deputies in the articulation of uses of force in the field in the form of better, more precise written and verbal reports and in trials or hearings, when testifying about those uses of force. I would also hope that these presentations will educate and train supervisors and administrations responsible for reviewing uses of force to better revise policies, guidelines and procedures with an eye towards articulating and thereby defending their officers’ uses of force to minimize confusion and help prevent issues that may lead to litigation outside of the criminal arena, i.e., administrative or civil.

II. THE LAW: Although many, if not most of us in this field have a good idea of the prevailing law governing law enforcement uses of force, a good starting point for any presentation or article regarding law enforcement use of force should entail a brief reminder of the law in this area and its effect on your decision-making.

A. Tennessee V. Garner

Before we delve into what has become the quintessential case on law enforcement use of force, Graham v. Connor, 490 U.S. 386 (1989), we need to begin with the case that first began to narrow and define the parameters of law enforcement use of force, Tennessee v. Garner, 471 U.S. 1 (1985). While many of us know this case by name, less have an understanding of its holding or the “law” that came out of Garner; even less recall the underlying facts that gave rise to that law.

Remember the “good ole days” of 1974? Watergate; fuel embargos and long lines at the gas station; polyester suits; t.v. shows like “The Rookies,” “Starsky and Hutch,” and “S.W.A.T.?” (Did I leave out, “The Rockford Files?”) Well, aside from those fond pieces of Americana, there were also different rules of engagement for law enforcement uses of force. In 1974, Tennessee was not only the home to Jack and Charlie Daniels, it also boasted a statute allowing for police officers to use “any means necessary” (including deadly force) to arrest a suspect who was fleeing or actively resisting that officer’s lawful arrest. Step in Edward Garner, a young burglar who, when caught in the midst of a hot prowl, tried to escape from two Memphis police officers. During that escape attempt, an unarmed, 5’ 7” Garner tried to hop over a chain link fence in the backyard of the burglarized residence to escape arrest. One of the officers, after verbally ordering Garner to “HALT!” shot Garner when Garner ignored the command and continued his attempt to escape. Garner died of a gunshot wound to the head.

Although the Memphis Police Department found nothing wrong with the shooting, nor the District Attorney, Garner’s family sued the department, city and the officers involved. The case was dismissed during jury trial on a motion for a directed verdict by the city and the department, citing that the officers’ actions were protected by the Tennessee statute. The Court of Appeals reversed, holding that the Tennessee statute was unconstitutional. The Supreme Court agreed, affirming the Court of Appeals’ ruling, also holding the Tennessee statute was unconstitutional. The court also held that deadly force may not be used against a fleeing suspect unless it is not only necessary to prevent escape but also that the facts presented to the officer would lead a reasonable officer to conclude that the suspect poses a significant threat of death or serious bodily injury to the officer or others. In other words, when confronting resistive or fleeing suspects, before using deadly force, officers must be able to articulate that the facts confronting them led them to reasonably believe that the suspect posed a threat of death or great bodily injury to them or to others (i.e., their partners, public, etc.). Again, in other words, officers need to articulate, “I thought he was gonna kill me,” “I thought he was reaching for a weapon to kill me,” along with a detailed description of the underlying facts and events that led up to and support that fear. The standard academy line, “Fearing for my safety and the safety of my partner,” does not, by itself (or, many times, even coupled with other facts) allow for deadly force. In many cases, the generic, “officer safety” does not adequately articulate support for any force decision.

B. Graham V. Connor

Any discussion regarding law enforcement use of force usually begins (although this one did not) and unfortunately ends with citing the quintessential case of Graham v. Connor, 490 U.S. 386 (1989).

On November 12, 1984, Dethorne Graham was a diabetic having an insulin reaction and in need of some sugar. A friend drove him to a convenience store to buy some orange juice. Seeing the line at the counter was long, Graham ran out almost as fast as he ran in and got back in the car. Connor, an on duty Charlotte police officer, felt Graham’s actions were suspicious and stopped the vehicle. Graham was acting strangely and, although he and his friend tried to explain his actions were due to his insulin reaction, even going so far as to offer to pull a diabetic medical decal out of Graham’s wallet, Connor and his fellow officers were not convinced. They handcuffed Graham and had him sit in the back of a patrol car while they checked out his story and the convenience store. Once it was determined that no crime had taken place, Graham was let go.

Graham filed suit in Federal Court, alleging his rights were violated under The Fourteenth Amendment to the Constitution and 42 U.S.C. Section 1983. The case was dismissed on a motion for a directed verdict. The dismissal was upheld by the Court of Appeals. The Supreme Court reversed, holding that the lower courts had used the wrong test in determining if Connor had used excessive force. In coming to that conclusion, the Court stated that any review of a law enforcement officer’s use of force must fall under the Fourth Amendment’s “objective reasonableness,” standard of analyses. Some of the language of the court (what everyone does seem to remember from the case, of course) gives definition to that analyses:

The Fourth Amendment’s ‘reasonableness’ inquiry 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. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene. “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.”

Sounds great? Especially in light of California Penal Code Section 835a1, which allows an officer to use force to make an arrest, overcome resistance or prevent escape. PC § 835a also states that the officer need not retreat, and will not be deemed the aggressor in the implementation of that force when he or she does not retreat. Sound even better? Add to that P.O.S.T. Learning Domain 20, that allows for officers to use force for the same reasons as set forth in PC § 835a and adds that the use of “personal weapons” may be necessary and reasonable, dependent on the circumstances, to again overcome active or passive resistance, and one wonders what could ever go wrong? Sounds like an officer’s training seems to mirror the law, and vice-versa, both taking into account what an individual officer is facing in the field, not how some Monday morning Brett Favre may have reacted in the comfort of his couch, office, or jury deliberation room. You probably already guessed that there wouldn’t be a need for an article (or series of articles) if there wasn’t a hitch.

Yes, there’s a hitch. More often than not, aside from those cases of poor judgment or training (or both), what usually goes wrong was summed up well by a sarcastic, sadistic Strother Martin to a beaten but not broken Paul Newman in “Cool Hand Luke”:

III. “WHAT WE HAVE HERE IS A FAILURE TO COMMUNICATE.” (Stay tuned: Part 2–Practical articulation/communication of use of force in next issue)

1. “Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.

A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.” California Penal Code Section 835a.