The 4th Ammendment & Deadly Force..... Officers don't have to exhaust all available force options... Laura L. Scarry Nov./Dec. 2005 issue.

The 4th Amendment & Deadly Force

Officers don't have to exhaust all available force options

Laura L. Scarry | From the November/December 2005 Issue | Tuesday, November 29, 2005

Photo Dale Stockton

FEATURED IN TRAINING

• Improvise, Adapt & Prevail
• The High Calling of a Noble Cause
• The Trainer's Trainer
• Gang Crime Analysis
• Good Communication Skills
• Atlanta PD Training Lapses Could Imperil Prosecutions
• Preparation Is Priceless

Assume a police officer faces the following deadly force situation: He responds, along with two other officers, to a residence as a result of a 911 call from the homeowner. Dispatch reports the homeowner's son threatened her with a steak knife, but she was able to escape from the residence.

When all three officers arrive, the first officer meets with the homeowner outside the residence. She tells him she suspects her son is abusing cocaine and that he is threatening to commit suicide. She says she wants her son transported to a mental-health hospital for an evaluation. She also tells the officer she does not know if her son is still armed and that he may now be in the basement.

To further assess the situation, the officers enter the house in an attempt to establish a dialogue with the individual. In doing so, they observe the individual standing at the bottom of the stairs leading to the basement holding a steak knife. The first officer takes his firearm out of its holster. He has no other weapons—no baton, Taser or pepper spray—on his person.

The first officer tries to determine why the individual is distraught; however, as the individual talks, he keeps moving to the side, further into the basement away from the officers' view. In response to the individual's movements, the second and third officers, who carry firearms, a Taser and a canister of pepper spray, exit the residence to determine whether doors or windows can offer a better view of the individual, if other individuals are present and if the individual has access to other weapons.

Immediately after the second and third officers leave the first officer alone in the residence, the individual reappears at the bottom of the stairs armed with the knife raised in a stabbing position. He is enraged and suddenly leaps up the stairs in two hops, yelling that he is going to kill the officer. The officer is utterly surprised as he rapidly steps backward, raising his weapon in the direction of the threat and shooting five times. Two shots hit the body, and the individual dies moments later.

Obviously, this imperfect scenario wrought with tactical errors could result in a civil rights lawsuit against the officers and the governmental entity that employs them. Typically, these types of civil lawsuits are filed in federal court under 42 U.S.C. § 1983 (see "The Statute," p. 75) alleging the officers and governmental agency violated the individual's rights under the Fourth Amendment to the United States Constitution. Obviously, the defense will state no constitutional violation occurred. Is the defense correct?

The 4th Amendment
A police officer's successful use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable.¹ The fact-specific nature of whether an officer's use of force is unreasonable or excessive depends on the totality of the circumstances surrounding the encounter.² Further, the issue of whether an intentional use of deadly force by a police officer is permissible under the Fourth Amendment requires an objective reasonableness inquiry.³

Additionally, the particular use of force must be judged from the perspective of a reasonable officer on scene, rather than with 20/20 hindsight.⁴ Moreover, any judgment must allow for the fact that police officers are often forced to make split-second

judgments—in tense, uncertain and rapidly evolving circumstances—about the amount of force necessary in a particular situation.⁵

When an officer believes a suspect's actions place them, their partner or those in the immediate vicinity in imminent danger of serious bodily injury or death, the officer can reasonably exercise the use of deadly force.⁶ Typically, if the suspect threatens an officer with a weapon, that risk has been established.

In the hypothetical scenario presented above, the attorneys representing the shooting victim might argue that the police officer who fired the fatal shot should have carried other weapons on his person or, if the city policy did not mandate all officers carry Taser and/or pepper spray, the city should have established such a policy. Surprisingly, law enforcement trainers and top-level administrators have fallen victim to this way of thinking. However, as discussed below, there is no constitutional mandate that officers carry or use other non-lethal weapons before resorting to deadly force when confronted with the same.

Of course, in retrospect it's easy to say the police officers should have waited for a supervisor or a SWAT team, used some other maneuvers or carried other weapons, but Graham v. Connor makes it clear that the Fourth Amendment does not require second-guessing if a reasonable officer making rapid decisions under uncertainty perceived a need to act.2 This type of armchair quarterbacking simply has no relevance to the reasonableness inquiry under the Fourth Amendment.

Unfortunately, some law enforcement trainers incorrectly state officers should exhaust every reasonable option before using deadly force. Some trainers assert officers should react to an offender's aggression with the minimum amount of force necessary to achieve the lawful objective in deadly force situations. Under the Fourth Amendment, these assertions are just plain wrong. The Fourth Amendment does not require police officers to exhaust all other options in a deadly force situation before resorting to deadly force; to require that of police officers in stressful, rapidly evolving situations leaves them vulnerable to serious injury or death.

Excerpt from Smith v. Freland
"Under Graham, we must avoid substituting 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 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."

—excerpted from Smith v. Freland,

954 F2d 343, 347 (6th Cir. 1992)

The Statute
"Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or territory subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress."

—42 U.S.C. § 1983

The Bottom Line
So, what does this all mean to the officer who fired the fatal shot in our scenario? It means the officer (and the city) should not be liable under the Fourth Amendment for failing to use or supply less-intrusive alternatives to stop the threat of deadly force if he reasonably believed he (and/or his partners) would suffer great bodily harm or death. The Fourth Amendment does not require an officer to use the least-deadly or less-deadly force as long as it was reasonable for the officer to use deadly force.

The use of deadly force to stop an enraged, possibly suicidal individual with a history of drug abuse from charging at an officer while wielding a knife is reasonable. The individual was threatening the safety of the officer, and it was constitutionally permissible for the officer to use deadly force. Even if one of the officers equipped with a Taser and/or pepper spray were standing on the stairs instead, the knife-wielding man's sudden approach would present a threat sufficient to justify his use of deadly force without first exhausting all force options. Officers may avail themselves of all the tools at their disposal, but are not required to do so as a matter of law.

Remember: The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but whether the seizure (in this case, the shooting) was objectively reasonable to someone standing in the officer's shoes—and it was.

Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.

References

1. Tennessee v. Garner, 471 U.S. 1, 7 (1985).

2. Graham v. Connor, 490 U.S. 386, 396 (1989).

3. Id. at 399

4. Id. at 396 

5. Id. at 396-97

6. Id

2007 DEADLIEST FOR POLICE! ! (Stolen from a blog, but the story was summarized by the Washington post Dec. 27, 2007)

BS Ranch Perspective

Well it looks like over all the Fifty States, 2007 has passed up 2001, as the Deadliest for Police Officers, Which like the Report from Texas is proof that Criminal Gangs are more wide spread and they are not afraid to shoot at Police Officers to make a bigger reputation for themselves! In the Gang World the more Craziest you are and the more people that you have killed is the measuring tool for just such an accomplishment. However, if you as a Gangster Kill a Police Officer that can get you promoted within the gang from a street thug to an Enforcer, which is a Lieutenant position. The LT. in a Gang can approve or disapprove hits that are wanted to be done by other Gang members, every hit has to be approved by the Hierarchy of the Gang, now the approval may not go any higher then the Enforcer!

Now that MS-13, has spread across the states Starting in Southern CA. and then New York NY. There was reports of Chicago IL. Florida, Maryland, Minnesota, Vermont, Pennsylvania, New Jersey, West Virginia, Ohio, just all the Eastern and western States, that have any cities with any sizeable Population in them. The same goes for the Western United States as well.

Not just MS-13 who get their running orders from the Southerners or the Mexican Mafia, then there is the Neustria Familiar who has their Solders on the streets that have the same orders to eliminate POLICE OFFICERS if they just happen to step in the way of the business that they are trying to conduct. With the Growth of Gangs the POLICE OFFICER has to Step lightly and be carful, & use all their training from the Academy and the follow up training from their Gang Unit to stay Alive on the Street!!

BS Ranch

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2007: Deadliest for Police

Record traffic fatalities and a surge in shooting deaths pushed the nation's death toll for police officers to its worst in nearly two decades.

The Associated Press reports via The Washington Post that with the exception of 2001, when 72 of 239 officers died during the Sept. 11 terrorist attacks, 2007 was the worst since 1989.

The National Law Enforcement Officers Memorial Fund and Concerns of Police Survivors jointly released preliminary data in a report issued today.

As of Wednesday, 186 officers had died on the line of duty -- 81 in traffic incidents and 69 in shootings. Overall, fatalities are up from 145 in 2006, when traffic crashes accounted for 76 deaths and another 52 officers were killed in shootings.

Police Fatalities on the rise in 2007 (Christian Science Monitor September 17, 2007)

from the September 17, 2007 edition - http://www.csmonitor.com/2007/0917/p03s03-ussc.html

Police fatalities on the rise in '07

Two shootouts last week are part of a troubling phenomenon in which officer deaths have jumped to a level not seen in 29 years.

By Patrik Jonsson | Staff writer of The Christian Science Monitor

 

ATLANTA

The shooting of four police officers, one of them fatally, near Miami on Thursday became another dark day in what is already a tough year for America's 800,000 police officers.

Coming only a few days after a shootout in Odessa, Texas, that killed three officers, the Miami incident became part of a troubling phenomenon for 2007: a spike in the number of police officers who died in the line of duty to a level not seen since 1978.

Of the 132 officers to die so far this year, 54 were shot. The number of shootings represents a 59 percent increase over the same period in 2006, according to the National Law Enforcement Officers Memorial Fund in Washington.

After years of watching these figures decline or hold steady, experts are not prepared to say whether this year's increase is a trend or an aberration.

Still, "the figures this year are nothing short of alarming," says Craig Floyd, chairman of the officers memorial fund.

Police offer several possible explanations for the high losses, including an uptick in violent crime around the country. Some experts suggest that community empathy for police, which rose after 9/11, may be waning now, especially in places where tensions exist between poor minority residents and police forces, or where transiency is relatively high, as in Miami or New Orleans.

The '07 trend line, while distressing, does not signal a danger level akin to that of the social upheaval of the 1960s and '70s, or of the "crack wars" of the late 1980s, experts say.

"It is a different time today and [there is] less of a generalized adversarial relationship between the citizenry and the cops," says Laurence Miller, a psychologist who works with the West Palm Beach Police Department in Florida. "The hard cases [in the 1960s and '70s] were a large group of criminals who politicized their criminality as rebellion. Some were sincere rebels with or without a cause, and some were petty criminals who said it was OK to take their anger out on cops."

Between the afterglow of 9/11 and TV shows such as "Cops," which usually depict police officers as tough-guy professionals who exude gritty determination in the face of criminality, law-enforcement officers today enjoy relatively high standing in society at large.

Police losses much higher in early '70s

Those attitudes can affect the police fatality rate. Back in 1973, when there were about 210 officers for every 100,000 Americans, 134 police were feloniously killed, according to statistics from the US Department of Justice. In 2005, the last year for which the DOJ has figures, 55 police officers were feloniously killed and there were about 250 police officers for every 100,000 residents.

(On the other side of the coin, the Justice Department counts an average of 350 "felons justifiably killed by police" in recent years, down from a peak of about 400 in 1994.)

The recent officer deaths from shootings have raised awareness and tension in station houses across the US.

In Florida, 10 police officers have been killed this year. But big metro areas and sprawling, transient suburbs are not the only places affected. Veteran cop Bruce McKay was shot and killed in rural Franconia, N.H., in May.

In the Miami incident, police caught up with the suspect, Shawn Sherwin Labeet, Thursday night at an apartment complex, where he was shot and killed. Police say he was armed and armored, and they have arrested six others for helping him flee or for giving false information. Miami-Dade officer Jose Somohano died in the shootout earlier that day, one officer is hospitalized, and two were treated and released.

"It's gut-wrenching," said Miami-Dade County Mayor Carlos Alvarez on Thursday before the suspect was found. "It's a sad day."

The suspect had used a powerful semiautomatic weapon to shoot the four officers, police say.

Dangers of police work remain high

Nationwide, six incidents this year resulted in multiple officer deaths, from Moncks Corner, S.C., to New York City.

The fact that cops are backed up by tough laws, improved armor, and better training should not lull anyone into complacency about the danger of police work, says Terry Lynn, a professor at Endicott College in Beverly, Mass., and a former police officer who was wounded in action in Boston in 1993.

"When good intersects with the bad, we hope that good is always going to result, and that's not always the end result," says Mr. Lynn.

Despite tragic incidents, police work is safer than many people might think. Policing is ranked eighth – below convenience store clerks, construction workers, and Bering Sea crabbers – when it comes to dangerous jobs.

Mr. Floyd of the officers memorial fund allows, too, that recent events could be aberrations. Between 2005 and 2006, he says, North Carolina went from zero officer deaths to 10. A similar thing happened in Virginia the year before. "It's hard to explain that," he says.

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BS Ranch Perspective:

It's not just in Atlanta that the Police Population is being assaulted, it is also these 50 states as well! For some reason the Respect for Police is down and the people that are have that respect for the Police, simply don't any more! It is truly a sad life that we are in and have become!!

I hope for The sake of the United States of America that the feelings turn around, before the Law Enforcement Position becomes a position that is something that People hate have had grown to hate!!

BS Ranch