There has been an outcry across the country that police officers receive special treatment in the decision of whether criminal charges are appropriate in a use of force case. Police officers are, by necessity, given a different standard that other citizens for a valid reason. If a police officer were held to the same standard, they would be unable to take an uncooperative suspect into custody because the use of any level of physical force would constitute criminal assault. That would require the officer to walk away from a person who refuses to be arrested.
The standard of conduct for police was written by the United States Supreme Court in 1989 in a case titled Graham v Connor. In that case the Court said, “(c) The Fourth Amendment “reasonableness” inquiry 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. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
The setting of this standard by the Court applies in all cases. It supersedes State laws, creating an incredibly difficult situation for a jury to apply in a criminal case because those citizens have not been trained in the rules of engagement. The result is mistrials because the jury cannot reach a unanimous verdict as has been seen in Baltimore, Charleston and Cincinnati. Pending cases in Saint Paul, Chicago and Tulsa are likely to end in the same result.
The question of whether an officer used “excessive force” is where the problem lies because it is not an issue of what actually occurred. It is whether the officer had a reasonable belief that their life (or the life of another) was in imminent danger and whether another reasonable officer would have acted in a like manner.
The Supreme Court also said, “The calculus of reasonableness must embody [490 U.S. 386, 397] allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.
In order for this issue to be resolved, States need to write law specific to law enforcement officers that set forth the following:
- The officer(s) acted under color of law
- The action(s) would not have been employed by a reasonable police officer
One more point that needs to be made is that the Department of Justice has jurisdiction in any police use of force case. Yet the number of prosecutions by the Federal Government is almost non-existent. AG Eric Holder dispatched fifty federal agents into Ferguson, Mo. To investigate the shooting of Michael Brown and declined to prosecute Officer Darren Williams. They did not investigate the deaths of Eric Garner (New York), Sam Dubose (Cincinnati), or Tamir Rice (Cleveland). The reason that they have shied away from these cases is the likelihood that their cases would not result in a conviction of the officer. County prosecutors, on the other hand, are elected officials who feel a need to placate and pacify a segment of their constituency knowing that their likelihood of success is minimal at best.
- Barry Andrews spent twenty-one years as the Executive Director of Police Training Institute, Inc., a non-profit advanced law enforcement training organization and is a published author.