THE MAGAZINE

A Force to Reckon With

By Tommy J. Burns

Additionally, the Court ruled that “the Fourth Amendment ‘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, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

According to Graham, officers must consider four issues: Is the suspect an immediate threat to officers or others? Is the suspect actively resisting seizure or attempting to evade seizure by escape? Are circumstances tense, uncertain, and rapidly evolving? Is the crime at issue a severe one?

A few years later, an appellate court looked to the principles set out in Graham in the case Scott v. Heinrich (U.S. Court of Appeals for the Ninth Circuit, 1992). In that case, the court found that use-of-force decisions should be made based on what is reasonable at the time. In the case, officers who were being shot at identified the presumed shooter and returned fire. The officers killed the suspect. However, it later became clear that the deceased man had not been shooting at the officers. The man’s wife sued the police, arguing that they should have used less intrusive measures when dealing with her husband.

The court disagreed. In the written opinion of the case, the court stated that “requiring officers to find and choose the least intrusive alternative would require them to use superhuman judgment. In the heat of battle, with life potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness in officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress.”

By contrast with the reasonableness standard, the use-of-force continuum can create a number of problems when used as a defense in court, because continuum policies have created misunderstandings that affect how a jury will judge the use of force. Chief among these is the “one-plus theory,” which means that an officer must use the next step in the continuum to respond to the force currently being presented—in other words, the officer can’t escalate to a level of force more than one step higher than the suspect is using.

Milwaukee police defense and trial attorney, Gregg J. Gunta, says that “a recurring problem with continuums is that once the plaintiff’s lawyer introduces a ladder- or staircase-type escalation of force continuum, jurors often look at it and think officers must enter the ladder or staircase at the bottom.”

Gunta explains that it is important to get the jury to understand “that officers are not required by law to move from the bottom to the top of the ladder, staircase, circle, and matrix.”

He notes that if the use-of-force continuum is the basis for the defense, “It is often hard to get lay people to understand that police officers can enter at any level, based upon the totality of the circumstances facing them.”

Juries also often believe that an officer has a duty to retreat, that officers must see a weapon prior to using force, that officers must be attacked before they use force, that courts have banned particular tactics and weapons, and that courts and juries can make a determination later as to whether or not force was reasonable. These assumptions are incorrect. The Court clearly stated in Graham that the Fourth Amendment use of force is determined by what was known and happened at the very moment the force was used, not what was discovered later.

A growing number of attorneys see this as the more logical basis for defense of use of force. For all of these reasons, the underlying theory in amendment-based training is that use-of-force continuums should not be the default policy. Instead, officers should use the objective reasonableness standard set out in Graham.

Organizations such as the Americans for Effective Law Enforcement, Inc. (AELE), and the Institute for the Prevention of In-Custody Deaths, Inc. (IPICD), have pioneered amendment-based use-of-force training.

AELE, which was formed in 1966, is an educational organization that produces and disseminates legal information through traditional seminars, electronic media, and direct contact. IPICD was founded in 2005 with the sole purpose of educating interested parties about arrest-related deaths. Both of these nonprofit groups have been involved in law enforcement training and legal research for many years. Though the movement to replace use-of-force continuum training with amendment-based programs has been slow, it is gaining momentum among training organizations.
 

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