Cases Addressing Officers Shooting of a
Child, Tamir Rice, Who Pulled out Realistic Looking Fake Firearm on Police
By Dr. Peter A. BaroneThe cases which are used by the court and by the prosecutors, that family members and other whose definition of justice is only the outcome they want, are out there and the issues and holdings are not hidden. It is amazing what is seen when one takes the time to look and review all of the shootings and other types of use of force cases and comments made by individuals who have no idea as to what the law actually is regarding use of force issues.
We need to have a commonality and a consistent way in which to make these assessments and not let gender, race, age or unjustified and ignorant community comments and actions come into the picture if all of the other prerequisites and requirements have been met. It would be very wise and very prudent to actually follow the United States Supreme Court’s rulings and the state statutes decided by the court and put in place by the legislators; just as it would not be wise to apply the rule of law in a way that is swayed by the media and Monday Morning Quarterbacks as appears to happen frequently and was not followed in this particular case where the law enforcement and prosecutors did follow the law and supreme court decisions.
It is universally known by anyone who has had any official involvement in a police use of force, and especially a police use of deadly force, investigation that there are a very large number of valid variables involved in each incident, and it seems impossible to give an officer an exact template to follow; however, the protocols and standard operating procedures and the legal holdings from the United States Supreme Court are very good guides if they are actually followed and applied in all cases fairly.
In fact we see that the United States Supreme Court has made it very clear in the case of Terry v. Ohio (1968) that, “. . . It would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” That decision is a very powerful one and it is in support of, and also in favor of, law enforcement officers who may have second thoughts about using their weapon when the required situation presents itself to use force, to include deadly force when the situation warrants a certain level of force and not take unnecessary risks and place themselves and others at risk. Terry v. Ohio (1968) vividly demonstrates deference to the legitimate safety concerns of law enforcement officers and the compelling interests of society in protecting those who are charged with enforcing its laws.
In addition to Terry v. Ohio we
see that in Wikens v. Gaddy (2010) the United States Supreme Court held that
the issue of reasonable force is not whether the individual suffered any injury
during the incident or encounter but the issues is whether the force was
reasonable, not the extent of the injury sustained. The Supreme Court went on
to further clarify that the law enforcement officer is entitled to continue to
their use of force until a suspect thought to be armed is fully secured. The
Supreme Court addressed what law enforcement officers can do if they believe
the suspect is thought to be armed so when we insert the fact that the suspect
is armed it further bolsters the decision of the high court.
The officers
did what they were supposed to do and the video backed their actions up
however, again, the family wants justice and again we see that their justice is
not the justice defined in law books or in Webster’s Dictionary; it is what
they want the result to be which they call and define to be justice. This is a
SERIOUS issue and it needs to be addressed and these individuals need to be
informed that justice is done when the officers follow the rule of law and the
holdings of the Supreme Court and what the detectives, prosecutors and in this
case the grand jury have determined. This is justice. There was NO criminal
conduct by law enforcement in the Ohio case.
In the case
of Graham v. Conner (1989) The United States Supreme Court discussed and
addressed the right of a law enforcement officer to make an arrest or
investigatory stop and in doing so the Court stated, that these type of action necessarily
carries with it "the right to use some degree of physical coercion or
threat thereof to effect it." All the law requires is that it be a
reasonable amount of force. The Court went onto say that such reasonableness,
however, has to be judged in light of the facts and circumstances confronting
the officer, rather than on the basis of their underlying motivation or intent.
The issue that was addressed in this case was whether the officer acted in an
“objectively reasonable” manner based on what they knew at the time. The Court
advised that the reasonableness of each particular use of force has to be
judged and the view must be from the perspective of a reasonable officer on the
scene, and must make an allowance for the fact that police officers often have
to make "split second" decisions about the amount of force that is
necessary.
It was done
in accordance with these requirements and it was reviewed by investigators and
was reviewed by the prosecutor and it was reviewed by the actual grand jury of
citizens of the community.
Notwithstanding
the desire of the family to have the prosecutor bring the cause on behalf of the
child it is not their job to do so like a civil attorney would do or defense
attorney would do. I was a major crimes felony prosecutor and prosecuted murder
cases and all types of major cases and I represented the STATE and SOCIETY and
not the victim of the crime. In fact anyone who has studied law or criminal
justice knows that the victim of a crime, if they are alive, become WITNESSES
and are no longer seen as the victim but as the witness because the STATE
becomes the victim and that is why the style of the case is seen as The State
of or the Common Wealth of or the United States of America v. the (Defendant).
This case
and the Officer’s Actions the officers did everything that was required of them
according to Graham v. Connors (1989) and the defense attorney on Fox is an
idiot and I would argue with him any day any time.
The
assessment and the investigation of the incident must be based on the facts
that the officer knows at that time, or reasonably believes that he or she
knows, rather than looking back at the circumstances with hindsight or on the
basis of information later discovered but not then known. An officer may,
therefore, act upon what he reasonably believes or perceives is a threat of
death or serious bodily harm to himself or others, and the fact that he may,
for example, be mistaken in believing that a suspect confronting him is armed,
will not alter the legitimacy of his use of deadly force Graham v. Conner
(1989).
In Garcyznski v. Bradshaw (2009)
the 11th Circuit held that at least where orders to drop a weapon
goes unheeded an officer is not required to wait until an armed felon has drawn
a bead on the officer or others before using deadly force. Attorneys and activists often assert that “cops shoot first and
ask questions later.” Dr. Lewinski demonstrated that officers must take
preemptive action in order to adequately defend their lives. If they wait until
they actually see a suspect’s gun pointing at them, it’s too late. The United States Supreme Court has
addressed many of these issues and questions. In the case of Jean Baptiste v. Gutierrez (2010), 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. Once the child did not comply with their orders and reached
for the weapon without an orange tip they were totally justified in taking the
actions they took based upon the totality of the circumstances and based upon
what they knew at the time of the incident.
In the case Hudson v. McMillian (1992) the United States Supreme Court reaffirmed its prior decision where the Supreme Court held that a "significant injury" is not a threshold requirement for stating an excessive force claim. Instead, the Court stated the core inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically cause harm." Officers are not supposed to be hurt, injured, shot or stabbed before they can take action and use force to defend their lives and stop the threat.
When we examine the case of Williams v. City of Grosse Pointe Park (6th Cir. 2007), the court
found that a police sergeant acted objectively reasonably in firing at a stolen
car, striking the driver in the back of the neck and leaving him paralyzed. The
court in this case discussed the facts that the motor vehicle had been reported
stolen, was being driven by a minor, and who had evaded attempts to block the
vehicle, going into reverse to collide with an officer's cruiser. When the
sergeant pointed his gun at the driver's head, he was knocked down by the
vehicle, prior to shooting several rounds. The court advised that no jury, who
were presented with the facts, could reasonably find the use of deadly force unreasonable,
based on the driver's decision to flee and the immediate threat of harm the
driver posed to the sergeant, pedestrians, and other drivers. The Court
concluded that it is reasonable for a police officer to use deadly force to
prevent harm to innocent bystanders, even to the point of putting the fleeing
motorist at serious risk of injury or death Scott v. Harris (2007).
The court provided the following information:
The reasonableness of a
use of force turns on whether the officer's actions were objectively reasonable
in light of the facts and circumstances confronting him, without regard to his
subjective intent or motivation." Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012).
"The use of deadly force is reasonable where an officer has
probable cause to believe that a suspect poses a threat of serious physical
harm to the officer or others." Id. citing Tennessee v.
Garner, 471 U.S. 1, 11 (1985). We are hesitant to
second-guess the "split-second judgments" of officers working in
"tense, uncertain, and rapidly evolving situation[s]." Id.
at 967, quoting Graham, 490 U.S. at 396-97. "It may appear,
in the calm aftermath, that an officer could have taken a different course, but
we do not hold the police to such a demanding standard." Estate
of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012).
The court then noted
several cases that have reached similar conclusions and advised:
"We have held in
prior cases that officers confronted with similar situations acted in an
objectively reasonable manner when they employed deadly force. In Loch,
the police officer reasonably believed the suspect had a gun, even though in
fact the suspect had discarded his weapon before walking toward the officer.
689 F.3d at 966-67. In Morgan, the officer fatally shot a suspect armed
only with a knife who disregarded repeated requests to drop his weapon and took
a step in the officer's direction. 686 F.3d at 497-98. In Sinclair v. City
of Des Moines, we noted that "no constitutional or statutory right
exists that would prohibit a police officer from using deadly force when faced
with an apparently loaded weapon." 268 F.3d 594, 596 (8th Cir. 2001). In Thompson
v. Hubbard, we affirmed the grant of summary judgment in favor of an
officer who shot and killed an unarmed fleeing suspect, based on the officer's
credible testimony that the suspect "looked over his shoulder . . . and
moved his arms as though reaching for a weapon." 257 F.3d 896, 898-900
(8th Cir. 2001). See also Penley v. Eslinger, 605 F.3d 843,
851-54 (11th Cir. 2010)."
RECENT COURT CASE DECISION INVOLVING MAN WITH TOY PISTOL
On September 5, 2014, the Eighth Circuit Court of Appeals decided the Aipperspach v. McInerney et al, in which they upheld as reasonable the shooting of a man with a BB gun and held that a news helicopter’s video of the incident did not provide the perspective of officers on the scene. Officers were dispatched to an apartment and were informed an individual came to apartment and left and headed to woods. The dispatcher advised he might have an unspecified warrant. They began looking for him in the woods. A sergeant heard the call and responded and found him at the sitting at the bottom of a ravine. The officer identified himself and asked him to come up and talk. He refused and produced what was believed to be a black handgun, which is reality was a daisy pistol capable of firing BB’s and pellets. The officer drew his weapon and advised the suspect to drop his weapon. There were several audible requests to drop the weapon due to the fact that he DID NOT YET REACH POINTED the weapon at them and they were a distance away. He pointed the weapon to his head and then he slipped and fell backwards. Once he regained his balance he took the weapon away from his own head and then pointed to towards the
Detective Billy Aaron and Captain
Michael Costanzo were dispatched to Hart's apartment. Hart informed them that
Al-Hakim had come to borrow money, had left the apartment, and was headed into
a nearby wooded area. After speaking with Hart, Aaron and Costanzo were told by
police dispatch that there might be an unspecified warrant for Al-Hakim's
arrest. They began looking for Al-Hakim in the woods behind Hart's apartment.
Riverside Police Sergeant Dennis
Jones heard the police radio call and joined the search. Jones found Al-Hakim
sitting at the bottom of a ravine. Jones identified himself and asked Al-Hakim
to come up and talk. Al-Hakim refused and produced what appeared to Jones to be
a black handgun but was in fact a Daisy 008 air pistol capable of firing steel
BBs or lead pellets. Sergeant Jones drew his weapon and yelled to Al-Hakim to
drop the gun. Hearing that command, Detective Aaron went down the hill to stand
next to Jones, and Captain Costanzo radioed for assistance.
Additional officers from
Riverside and neighboring police departments responded to Costanzo's call for
officer assistance. In depositions, each officer who observed Al-Hakim in the
ravine testified that he believed Al-Hakim was holding a semiautomatic handgun.
The Daisy pistol's packaging was on the ground near Al-Hakim, but the summary
judgment record does not show that it was visible to the officers. The
responding officers positioned themselves along the ridge on the edge of the
ravine above Al-Hakim. Sergeant Ballard, armed with a rifle, positioned himself
near Sergeant Jones to provide cover for the officers interacting with
Al-Hakim. Officer Westrich, armed with a shotgun, and Officer McLaughlan,
carrying an assault rifle, moved around the ridge above Al-Hakim and positioned
themselves to Sergeant Jones's right, partially covered by trees.
An audio from the lapel
microphone of Gladstone Officer Christopher Morales recorded twelve audible
requests by Sergeant Jones and other officers that Al-Hakim drop his weapon in
the three and a half minutes prior to the shooting. Al-Hakim did not comply.
During most of the encounter, he kept the muzzle of the gun pointed at his own
body or head, but at one point, Jones testified, Al-Hakim pointed the gun in
Jones's direction. Jones warned Al-Hakim that if he pointed the gun at the officers
again, they would shoot. A minute or two later, Al-Hakim attempted to change
position and slipped, falling backwards. The
officers testified that as Al-Hakim regained his balance, he pulled the hand
holding the gun away from his own chin and swung it up and around, pointing the
gun in the direction of the officers on the ridge. One officer testified
that Al-Hakim appeared intoxicated. Within seconds, defendants Ballard,
Westrich, and McLaughlan and four other law enforcement officers fired their
weapons at Al-Hakim. Ballard testified he perceived Al-Hakim as a threat.
Westrich testified he feared for his life and the lives of the officers near
him when Al-Hakim swung the gun around. McLaughlan testified he "felt
endangered" by Al-Hakim's sudden movement. The sound of the gunshots on
Officer Morales's lapel microphone lasted about four seconds.
In the end the court advised: "the inquiry here is not into [Mr.
Al-Hakim's] state of mind or intentions, but whether, from an objective
viewpoint and taking all factors into consideration, [each defendant officer]
reasonably feared for his life" or the lives of his fellow officers (Wilson
v. Meeks, 52 F.3d 1547, 1553, 10th Cir. 1995.
References
Estate of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir.
2012)
Garczynski v. Bradshaw, 573 F.3d 1158
(11th Cir. 2009)
Hudson v. McMillian, 503 U.S. 1 (1992).
Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir.
2012).
Penley v. Eslinger,
605 F.3d 843, 851-54 (11th Cir. 2010).
Sinclair v. City of Des Moines 268 F.3d 594, 596 (8th
Cir. 2001).
Scott v. Harris, 550 U.S. ___
(2007).
Terry v. Ohio, 392 U.S. 1 (1968).
Wilson
v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995)).
Wilkins v. Gaddy, 130 S.Ct. 1175 (2010).
Williams
v. City of Grosse Pointe Park, No. 05-2409, 496 F.3d 482 (6th Cir. 2007).
