It is critically important to understand the legality of the use of force, to include deadly force, and the 4th Amendment as being absolutely critical to an officers ability of doing their job, abiding by and acting in accordance with the 4th Amendment and case law, and also staying alive to come home every night. Understanding the use of force case law assists officers in making sure that they are performing their duties in a manner that is legal and in accordance with the law. This understanding also assists them in not having to be overly concerned about being indicted, going to jail and being sued and subject to monetary loss if they are accused of having violated someone's rights. Understanding the law and case law also assists officer if they are involved in an officer involved shooting, on or off-duty, while trying to do their job and protecting the public and accused of acting in an illegal manner. Knowing what you can and cannot do legally is something that assists you in taking the proper action required under a variety of circumstances faced by officers in the performance of their duty.
Incidents like the ones occurring in Ferguson and New York City, where the law enforcement officers did their jobs and did it in the proper fashion, and then the officers saw various city officials allow the types of demonstrations and violence which were perpetrated without repercussions was no the proper or even legal message that should have been sent to the community and to the officers who again were caught in the middle of the issues. This type of non-action directed by the top city officials simply adds to the problem and also creates a very dangerous mind set for the officers when performing their duties and in the communities they are policing. These top officials violated the rule of law and assisted in tearing down the social control of which we have been working to maintain for thousands of years. These top officials stood by and ordered the law enforcement officers to stand y while demonstrators caused traffic delays, looted, burned, burglarized, and destroyed property with the mindset of the top officials being that it would be better to let these people get it out of their system. Could there be more of a mixed message to law enforcement officers and a definite message of non-support for the legal and lawful actions of the officers in the performance of their duty?
The Courts have answered the questions, just as the grand juries in both states answered the questions, concerning when officers can use deadly force in the performance of their duties. However, because of the fall out from Ferguson and New York City, due to top officials allowing the breaking of the law by allowing people to riot and stop traffic and protest without permits, officers are now second guessing what the Court has already vividly stated in their decisions due to the irresponsibility of the top officials. When you have top officials siding with the demonstrators and not supporting your law enforcement officers and supporting demonstrators that have injured your police officers. When a mayor actually makes claims of an alleged attacks on police officers when they were injured and there is actual film of these attacks against the officers there is a very negative message being sent to not only the officers but to the community.
Even though the officers are taught and know the answers to the questions involving the knowing of the answers to :Can I shoot someone in the back under certain circumstances?" "Can I someone going into the bed of a pick up truck during a traffic stop when I have told them to show me your hands and do not go into the bed of your truck?" "What I can I use as a weapon if I cannot reach my Asp or my CO spray or my firearm during an encounter when I have reached the point of absolute fatigue and I am experiencing what is medically know as Fatigue Threshold, at this point can I shoot them, or use my radio to stop them before I pass out?" The actions by top officials who ignore the Courts holdings and acquiesce to the illegal and riotous actions of demonstrators cause the officers to question the actions they need to take at the time the situations arise due to the lack of support and anti-police position taken by top officials such as we have seen in New York and Ferguson.
The United States Supreme Court has addressed many of these issues and questions. In the case of Jean Baptiste v. Gutierrez (2010), the Court of Appeals for the 11th Circuit advised that the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the subject who is taking the deadly action against them. The court is advising here that officers do not have to wait until it is too late to do anything because the threat has not just manifested itself, but has already been engaged in and is on the way with no time for the officers to actually and effectively react to the deadly threat. The Court understands that the suspect has the advantage of knowing what they are going to do and intend to do, and the officers have to try to interpret the threat and then provide a response and there is not enough time for them to actually respond in time to save their lives and the lives of the people they are trying to protect.
In the case of Wilkens v. Gaddy (2010), the United States Supreme Court advised that claims of the use of force on a suspect are to be evaluated on the basis of the nature of the use of force used, not on whether the individual suffered any injury during the incident. The MAJOR ISSUE is whether the FORCE used was reasonable in that situation, and not the extent of the injuries sustained by the suspect. A police officer is entitled to continue his/her use of force until a suspect, thought to be armed, is FULLY SECURED. People in Ferguson and in New York, who supported the protesting in response to the Grand Jury decisions need to take time away from making their signs and do some reading of these cases. It would be very highly suggested that the attorneys for these individuals also take some time and read the decisions in that the information contained within these and other decisions can be very informative and enlightening to them.
In the case of Garcyznski v. Bradshow (2009), the 11th Court of Appeals held that at least where orders to a suspect to drop a weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force. The word weapons in this case does not limited it to be a firearm. It can be a cane as used in a case in New York City, it can be an end table as used in a case in Florida early this morning, it can be a motor vehicle or even a fence pole as was used against two Jersey City Police Officers a couple of days after a Jersey City officer was ambushed and killed.
In the seminal case of Graham v. Connor (1989) there is a specific delineation pointing out the differences between the cases and how shooting a suspect in the back can be legal and not go against the decision in Tennessee v. Garner (1985). Understanding when deadly force is necessary and required in realistic situation, rather than continuums, and also understanding what officers can do when tactics and techniques which are taught in defensive tactics are not working or are not applicable when officers are facing a violent offender on the street, in an apartment or during any type of situation where the officer is facing serious injury or death. The United States Supreme Court does not intend for an officer be shot at before the officer can use deadly force to protect themselves and to protect others.
In addition to these cases we are going to also discuss the "stop and frisk and reasonable suspicion standard used to conduct stops on the street within the confines of the law and within the legal parameters of the 4th Amendment of the United States Constitution and the Bill of Rights.
Again using the case of Graham v. Connor (1989) it is seen that the United States Supreme Court has advised that an inquiry into the actions of a law enforcement officer's use of deadly force must be "limited to the facts and circumstances confronting them (the officers involved in the action on the scene) at the time..... and judged from the perspective of a reasonable officer on the scene..... rather than with the 20/20 hindsight" which is "not capable of precise definition or mechanical application." The United States Supreme Court was very clear and vivid on the standard of being "reasonable at the moment." The amazing part of the actions that took place after the grand jury's decision not to render a true bill against officer Wilson was that the Brown family and the attorney for the Brown family totally disregarded the decisions by the Circuit Courts and the United States Supreme Court. In addition, these individuals also questioned the investigation, the prosecutors assessment, review and then presentation of a copious amount of documents to the grand jury to make their informed decision as not being justice. Again we have the self-created definition of the Brown family and their attorney of the word justice and their reaction to what they felt was not justice per their definition when the grand jury returned a no true bill. This also holds true for the case in New York City when that grand jury returned a no true bill in that particular use of force case.
In addition to what has been already discussed the United States Supreme Court went further to say that "We must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make split-second decisions between action and inaction in circumstances where inaction could prove fatal (Graham v. Connors, 1989).
Dr. Barone
Jean Baptiste v. Gutierrez, 627 F.3d 816 (2010).
Wilkens v. Gaddy, 130 S. Ct. 1175 (2010).
Garcyznski v. Bradshaw, 573 F.3d 1158 (2009).
Tennessee v. Gardner, 471 U.S. 1 (1985).
Graham v. Connor, 490 U.S. 386 (1989).
