Police Use of Force: What Does the Law Say?

Police use of force, deadly or otherwise, has been a particularly hot topic in the news in recent years. In this age of social media and near real-time access to cell phone and other video of law enforcement activity it's inevitable that police work, which has always had an element of violence associated with it, would come under an unprecedented degree of scrutiny. Traditionally, nearly all police work occurred "out of sight" and accordingly was "out of mind" - at least to the general public. But those days are over and the police and the public are having to adjust to this "new normal."

When I went to the police academy in 1989, I remember being taught in no uncertain terms that deadly force was authorized to stop a fleeing felon. In other words, we were told we could shoot someone who was a felon if they were running away from us. Fortunately I was never in a position to test that dubious training. Police training in all subjects is now light years ahead of where it was then. Training in the area of use of force is even further ahead in my view.

So what is the law in this area? Can an officer lawfully use lethal force against a felon who is merely running away? The answer of course is no. But unfortunately most examples are not that clear.

When we look at any police use of force, there is one word in the English language to consider. That word is: reasonableness

In 1989 the Supreme Court of The United States decided the landmark case of Graham v. Connor and the precedent set by Graham has been the foundation of police training on use of force ever since.

Graham provides that any use of force incident -deadly or otherwise - must be "objectively reasonable" under the totality of the circumstances and that "[t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It also clarified "the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."

So the next time we see a viral video of a police shooting or other use of force incident try to apply the apply the Graham standard to it and you'll find that it can be extremely difficult to immediately decide whether it was "justified." In fact, the Graham case tells us that these things require a careful, deliberate, and thorough investigation into all the facts and circumstances before deciding that issue. Rarely - if ever - are knee jerk decisions based on a single video or social media post helpful. It's worth noting that under the Graham analysis, the presence or absence of a weapon doesn't prove anything either way. The presence of absence of a weapon is merely one factor that must be considered along with the totality of all other circumstances.

Police work can be - by it's very nature - quite ugly and violent. It's never like it is on TV or in the movies. But it is real life and involves real people. We demand that our police swear to support and defend the constitution and laws so we must in turn judge them - and their actions - according to the constitution and laws as interpreted by the courts. Unlike the court of public opinion or social media, courts and investigators don't have the luxury of picking and choosing what parts of the constitution to apply - in these cases they must follow the Graham analysis to wherever it leads - even if it leads to an unpopular place.

And by the way, it turns out that the "Fleeing Felon Rule" - which I was taught about in the police academy in 1989 was an old rule, grounded in the old English common law that was largely done away with in 1985 when the Supreme Court decided Tennessee v. Garner and held that the police could be sued for shooting a 15 year-old who was merely fleeing and who otherwise posed no lethal threat. In other words, shooting Garner was not "reasonable."

Philip Holloway, WSB legal analyst, is a criminal lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author.

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