Use of Force
State the impact of Tennessee v. Garner and identify the rules the case has placed on a law enforcement officer's use of force.
Changed the common law rule for when deadly force can be used to prevent the escape of the fleeing felon (must be dangerous) Requires probable cause to believe the fleeing suspect is dangerous Set up the above rule for the dangerous standard. 2 Part analysis: 1st - officers must have probable cause to believe that the fleeing suspect is dangerous, that is, posing a threat of death or serious physical harm to someone. 2nd - the use of deadly force must be necessary to affect the seizure. This does not necessarily require that all possible options be considered by the officer before using deadly force, but only that the officer resort to those options which offer reasonably safe means of perfecting the seizure. Examples: only have to give warning when feasible.
Identify the elements that a defendant must establish in order to use the justification defense for a prison escape.
The prisoner was faced with a specific threat of death or substantial bodily injury in immediate future The was no time for the prisoner to make a complaint to the authorities, or there is a history of futile complaints The prisoner used no force at all against innocents or personnel when he/she escaped The prisoner reported immediately to the proper authorities once he/she has attained a position of safety away from threat. If any of the above elements are lacking, then the defense cannot be asserted. If any one of the three elements is not established, then the actor loses the protection of this defense.
What are the sources of laws pertaining to use of force situations.
U.S. Constitution Federal States State Constitution State Statutes 28-1406 to 28-1416 Local Ordinances Department Policy (if department policy is constitutionally bad then you are not protected) Actor's moral beliefs
Identify the rules pertaining to an officer's use of force to prevent an escape.
Force can be used to prevent escape of an arrested person when the force could have been used to effect the arrest. Deadly force may be used when the Officer believes it to be immediately necessary to prevent the escape of a person for a jail, prison, or other institution used for the detention of person charged or convicted or a crime.
What is the statutory definition of deadly force and recognize examples of deadly force.
Force which an actor uses with the purpose (intent) of causing -or which he or she knows to create a substantial risk of causing - death or serious bodily injury.
Identify the rules pertaining to the Choice of Evils Justification and recognize examples of the defense.
General Rule - provides a defense of a justification for the use of force not otherwise specified in the other statutory sections like self-defense. Choice of Evils Defense: Excuses certain types of conduct that would normally be considered a criminal offense To use this defense at trial, the actor must put forward enough evidence to show: That he/she took action to avoid a greater harm The actor reasonably believed that his/her action was necessary to avoid a specific and imminent harm The actor chose the least harmful alternative to avoid that harm. Legislative intent - when the action taken is prohibited, but the harm sought to be prevented by breaking the law is greater than the harm to be prevented by the law, the actor is justified in using what would be otherwise unlawful force. Does not particularly cover law enforcement officers.
State the impact of Graham v. Connor and identify the rules the case has placed on a law enforcement officer's use of force.
4th amendment for any type of seizure Use reasonable force test When use force: make sure it's for a lawful purpose The use of force that a law enforcement officer uses must be reasonably necessary to accomplish a lawful objective. Whether the force will be considered reasonable will be based upon the totality of the circumstances known to the officer at the time. Scott v. Harris - applied Graham v. Connor to the use of deadly force tactics in vehicle pursuits.
Identify the rules pertaining to defense of property and recognize examples of the defense.
Citizen Application - Non-Deadly Force General Rule: force may be used if it is immediately necessary to prevent or terminate a unlawful entry or trespass, or the unlawful carrying away of tangible movable property. Before force is used to protect the property, a request to desist or stop must be given first unless: The request would be useless It would be dangerous to make the request Substantial harm would be done to the property before request could be made. Citizen Application - Deadly Force Deadly force may not be used solely to protect property, except when: Unlawful disposition of one's dwelling The actor is confronted with a person who is or attempting to commit or consummate arson, burglary, robbery, or other felonious theft or property destruction and either: used/threatened deadly force or the use of less than deadly force would expose the actor or another in his presence to substantial danger of serious bodily harm. Devices may be used to protect property, but must follow these guidelines: Cannot cause or be know to create substantial risk of death/serious bodily injury Use must be reasonable Warnings to probable intruders the fact that it is used
What are the four consequences that an officer faces if he/she uses excessive force.
Criminal penalties - greater likelihood of having these here Civil Penalties Employment penalties Suppression of Evidence
Identify the rules pertaining to defense of others defense and recognize examples of the defense.
General Rule: the use of force is justified to protect a 3rd person with the actor: (1) could have used the force had the action been directed at him, (2) reasonably believes that the 3rd person could have used that force to protect himself, and (3) reasonably believes his intervention is necessary. The standard the courts will use to determine of the actor's actions were necessary is the reasonable person test. Duty to Retreat: the same duties to retreat apply before the actor uses deadly force in the protection of another, but only if both parties can safely do so. And, the actor is obligated to try to get the person to retreat. There's not duty to retreat when in the other's dwelling
Identify under what circumstances a law enforcement officer's actions will be indemnified.
General rule - a law enforcement officer - whether reserve, full time or part time officer - have some liability protection in this state. Counties and municipalities must indemnify officers for suits based on negligent actors or omissions, which occur in the performance of their lawful duty. These protections include: Defending the officer or paying for the officer's defense Paying for any judgment that results The statute does not permit payment of a judgment against an individual officer as a result of illegal acts committed by the officer (ie., intentional torts)
Identify the rules pertaining to self-defense and recognize examples of force.
General rule: the use of force is justified when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself from the unlawful force of another (3 elements) A citizen can't use force to resist an arrest, but can use force to protect himself from an officer's excessive use of force. Non-deadly versus deadly force Deadly Force General Rule: deadly force is never justified unless the person using the force reasonably believes is necessary to protect himself from death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat. Exceptions: cannot provoke, duty to retreat The actor cannot be the person who actually provoked the use of deadly force. Duty to retreat: citizens, the actor is required to retreat before using deadly force, as long as he/she could safely do so, unless he/she is in his/her home or place of work. Officers have no duty to retreat before using such force.
Identify the rules pertaining to an officer's use of force to prevent a possible suicide.
In suicide situations, a law enforcement officer may use reasonable force to prevent the suicide; however, deadly force can't be employed unless for the self-defense of the officer or the protection of others. Cannot use deadly force to solely prevent the suicide.
What is the definition of force
Is a means to compel, constrain or oblige a person to do something by physical, moral, or intellectual means
What is the definition of non-deadly force and recognize examples of it.
It is force that does not create a substantial risk of causing death or serious bodily injury. When properly used, defensive tactics, are considered non-deadly force. Why? Because they maximize control while minimizing injury.
dentify the statutory rules pertaining to an officer's use of force in the performance of his/her duties based upon state statutes.
Non-deadly force: the use of force by an officer is justified only when the officer believes that force is immediately necessary to effect a lawful arrest. Essentially, this is the same standard found in the proportionate force doctrine found in Graham v. Connor and its related case law. Deadly Force by Officers It is justified when: the arrest is for a felony the person arresting is an officer or assisting a person whom he believes is an officer belief that the force employed creates no substantial risk of injury to innocent parties the actor believes a crime for which arrest is being made involves use or threat of deadly force or substantial risk exists that the person to be arrested will cause death or serious bodily harm if apprehension is delayed Gardner by interpretation adds additional requirement - give a warning where feasible
State the three ways in which a person may lose the justification defenses.
Not acting reasonably Reckless or negligent in acquiring information Recklessly or negligently inures or creates risk of injury to innocent parties (you become responsible for that injury, transferred liability)
Identify the rules pertaining to the use of force in parenting a child.
Recognizes qualified right to use of force Must be for lawful purpose Type and amount is limited Used for the purpose of safeguarding or promotes the welfare of the minor, including the prevention or punishment of his or her misconduct. Such force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain (leaving marks on child) or mental distress, or gross degradation (humiliation). Applies to parent/legal guardian, or other responsible adult (foster parents cannot use force) The rule is essentially the same for the use of force toward incompetents.
Identify the rules and elements that must be followed in order to use force to prevent the destruction of evidence.
State of NE v. Thompson - applied Graham v. Connor to a situation where a lateral vascular neck restraint was used and the State v. Harris accepted its use to prevent the suspect from swallowing evidence provided the following elements were met: That the officer had a clear indication that incriminating evidence would be found in suspect's must in light of his or her observations and prior knowledge of suspect (ie., the officer had probable cause to believe that the suspect had contraband in his mouth) Absent a warrant, an exigent circumstance existed (ie., the destruction of evidence) The officer's actions were reasonable and were reasonably applied. Cannot use deadly force.
What is the definition of reasonable force and recognize examples of force that is either reasonable or unreasonable.
The amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the same situation as the officer (or actor) would deem necessary to use under the circumstances. Force which is unreasonable is considered to be unlawful, unconstitutional, and/or excessive. Officers and/or citizens may use reasonable force to protect themselves, others or their property. Courts will employ this definition in order to see if the person's actions are justified. This is known as the Reasonable Officer/Person Test. Whether a person's choice of force is reasonable will usually depend on three separate issues: The Lawfulness of the other person's actions - force must be applied not to punish, but for a lawful goal. If it is used for an illegal goal, it will be considered unlawful. The Necessity of force at the time of its use. The reasonableness of the actor's belief. Some commonly cited factors that courts will consider include: The actor's goal in using force The actor's authority for using force If a crime was involved, what was the nature of the crime that confronted the actor. How are others similarly situated treated. Other factors confronting the actor that may make use of force necessary (ie. location, time of day, number of aggressors, weapons, physical size difference) Did the actor have any alternative to the use of force. Situations that allow you to use certain levels of force may change over the course of events, even during one encounter with a suspect. That is, what is reasonable will change in a given situation. The application of force will cease when the purpose justifying its use has been accomplished.