Use of Force Legal Review Paul Sullivan FLETC Legal Division paul.sullivan@fletc.dhs.gov
WARNING This document is FOR OFFICIAL USE ONLY (FOUO). It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). It is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with Department of Homeland Security policy relating to FOUO information and is not to be released to the public or other personnel who do not have a valid 'need-to-know' without prior authorization of an authorized Department of Homeland Security Official. FOR OFFICIAL USE ONLY
Use of Force Begins with the U.S. Constitution 4 th Amendment Application “seizures” and their “reasonableness”
The 4 th Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated ….” The 4 th Amendment leaves open reasonable seizures! What constitutes a Seizure? 4
Seizure Defined: A Seizure occurs when there is a governmental termination of movement by a means intentionally applied. Brower v. Co. of Inyo (1989). Two ways this happens: LEO’s application of force (however slight), or, Submission to the LEO’s show of authority
Agency Policy Policy Is Often More Restrictive Than The Law You can violate agency policy but still comply with Graham v. Connor
Agency Policy What if you violate agency policy but still comply with Graham? Administrative discipline may result from policy But they do not automatically make you civilly liable. Lawsuits are based on 4 th Amendment violations Your actions while violating policy, may be “reasonable” under the 4 th Amendment
Distinguish law from policy… UOF Policies impose certain per se rules Policy is when using force. Examples: – You can’t use warning shots; not the – You can’t use back -up weapons; law – You can’t shoot at moving vehicles; and, – You must use minimal force necessary. Know your policy and follow it! – Policy violations may result in administrative sanctions. Courts use the objective reasonableness standard, not agency policy! 8
Qualified Immunity “Qualified immunity balances two important interests: the need to hold public officials accountable when they exercise power irresponsibly, and, the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably .” Pearson v. Callahan, 555 U.S. 223 (2009)
Qualified Immunity Protects all but the “plainly incompetent” and those who knowingly violate the law Protects officers who make “Objectively Reasonable” Mistakes Not a question of “Good Faith” Lost when violating a clearly established Constitutional right
Qualified Immunity Addresses Civil Lawsuits against LEO for claims of excessive force Qualified Immunity is a defense to trial – Must be raised by defendant (LEO) before trial If granted, the plaintiff’s claim of excessive force (lawsuit) is dismissed Dismissal is qualified by the officer’s use of force being objectively reasonable Plaintiff’s version of facts is considered 11
Lawsuits Against LEOs (Non-Federal) 42 USC §1983 – Every person who, under color of any statute, ordinance, regulation, custom, or usage, – of any State or Territory or the District of Columbia, – 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
Lawsuits Against LEOs (Federal) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) Allows for lawsuits against federal officers and officials in the same manner as 42 USC §1983
Qualified Immunity Two Part Analysis: Did a Constitutional violation occur? Usually, the Plaintiff alleges that he/she was subject to an objectively unreasonable seizure by the officer Some type of “excessive force” that was unreasonable under the circumstances The court assume the facts as alleged by the plaintiff
Qualified Immunity Two Part Analysis: Was the right violated “clearly established?” Would it be clear to a reasonable officer that the conduct was unlawful in the based on the facts of the situation? Did the state of the law give the officers fair warning that their treatment of the plaintiff was unconstitutional? The unlawfulness must be apparent .
Plaintiff v. Defendant Seized? Yes Qualified Immunity? Case Yes Dismissed Constitutional ? No Law Clearly No Established ? Yes Trial 16
CASES RELATING TO USE OF FORCE Tennessee v. Garner 471 U.S. 1 (1985) 1. Graham v. Connor 490 U.S. 386 (1989) 2. Brower v. County of Inyo 489 U.S. 593 (1989) 3. Buckner v. Kilgore 36 F.3d 536 (1994) 4. Seekamp v. Michuad 109 F.3d 802 (1997) 5. Scott v. Harris 127 S. Ct. 1769 (2007) 6. Plumhoff v. Rickard 134 S. Ct. 2012 (2014) 7. Mullenix v. Luna 136 S. Ct. 305 (2015) 8. 17
CASES RELATING TO USE OF FORCE Tennessee v. Garner 471 U.S. 1 (1985) 1. Graham v. Connor 490 U.S. 386 (1989) 2. Brower v. County of Inyo 489 U.S. 593 (1989) 3. Buckner v. Kilgore 36 F.3d 536 (1994) 4. Seekamp v. Michuad 109 F.3d 802 (1997) 5. Scott v. Harris 127 S. Ct. 1769 (2007) 6. Plumhoff v. Rickard 134 S. Ct. 2012 (2014) 7. Mullenix v. Luna 136 S. Ct. 305 (2015) 8. 18
Tennessee v. Garner (1985) Memphis Police Officer shoots an unarmed burglary suspect to prevent escape Officer cited Tennessee state law as authority (fleeing felon rule) SCOTUS rules that use of deadly force to prevent the escape of an unarmed, non-dangerous fleeing suspect is unconstitutional.
Tennessee v. Garner An example as to when deadly force is reasonable: – There’s probable cause ; – The suspect poses; – A significant threat; – Of death or serious bodily harm; – To you or others; and, … – You give a warning … if it’s feasible. 20
TENNESSEE v. GARNER: An unarmed fleeing suspect has a constitutional right not to be apprehended by deadly force Provides an example of when deadly force is reasonable under the Constitution 21
CASES RELATING TO USE OF FORCE Tennessee v. Garner 471 U.S. 1 (1985) 1. Graham v. Connor 490 U.S. 386 (1989) 2. Brower v. County of Inyo 489 U.S. 593 (1989) 3. Buckner v. Kilgore 36 F.3d 536 (1994) 4. Seekamp v. Michuad 109 F.3d 802 (1997) 5. Scott v. Harris 127 S. Ct. 1769 (2007) 6. Plumhoff v. Rickard 134 S. Ct. 2012 (2014) 7. Mullenix v. Luna 136 S. Ct. 305 (2015) 8. 22
Graham v. Conner “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Any use of force must be “ objectively reasonable” Requires careful attention to the facts and circumstances of each particular case.
Graham v. Connor Proper application of force requires careful attention to the facts and circumstances of each particular case, including: – Severity of the crime – Whether the suspect is an immediate threat to the safety of the officer or others. – Whether the suspect is actively resisting arrest – Whether the suspect is attempting to evade arrest by flight 24
Legal standards outlined in Graham … A seizure must be Objectively Reasonable . – What were the facts? The facts are viewed through the lens of a reasonable officer. No 20/20 hindsight. – Look backwards, not forwards. No perfect answers – Only reasonable ones. Officers are often forced to make split second decisions…… 25
Objectively Reasonable? Whether force is “reasonable” is determined by the “Totality of the Circumstances” Perspective of reasonable officer on the scene Without regard to underlying intent or motivation All the facts and circumstances of which the LEO is aware at the time Can’t justify force with what you find out afterward Aren’t judged on what you find out afterward
Other Factors Used to Determine Reasonableness in a Use of Force Situation The number of suspects vs officers involved Size, age and condition of suspect Duration of the action Violent history of suspect known by officer Alcohol / Drug use by suspect Suspect’s known psychiatric history
Reasonableness “the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application” FACTS make force reasonable
Reasonableness No perfect answer Forced to make split-second judgments Under circumstances that are: Tense Uncertain Rapidly evolving
CASES RELATING TO USE OF FORCE Tennessee v. Garner 471 U.S. 1 (1985) 1. Graham v. Connor 490 U.S. 386 (1989) 2. Brower v. County of Inyo 489 U.S. 593 (1989) 3. Buckner v. Kilgore 36 F.3d 536 (1994) 4. Seekamp v. Michuad 109 F.3d 802 (1997) 5. Scott v. Harris 127 S. Ct. 1769 (2007) 6. Plumhoff v. Rickard 134 S. Ct. 2012 (2014) 7. Mullenix v. Luna 136 S. Ct. 305 (2015) 8. 30
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