Law: The loudest voice in use-of-force cases

Whether the mob is a group of angry citizens looting stores or police officers behaving in ways that betray their training and professionalism, the mob is not the answer in this country — it never has been


Where will we be left with the shooting in of Michael Brown in Ferguson and the in-custody death of Eric Garner in New York when the hysteria dies down and the media return home and the community activists find another cause célèbre to champion? 

We will still have two dead individuals mourned by their families and two police officers who must deal with the aftermath of those fateful moments. They will live and work with the knowledge they were responsible for the death of another human being. Justified or not, the taking of a life is not something most people pack away like a bad day at work and move on. These two officers will have to live with the consequences of those fatal days. 

What we’ve had up to now is mob mentality. Whether the mob is a group of angry citizens looting stores or police officers behaving in ways that betray their training and professionalism, the mob is not the answer in this country — it never has been. Not when the law has a remedy. The required response must be a thorough and objective investigation of each incident. 

What we’ve had up to now is mob mentality. Whether the mob is a group of angry citizens looting stores or police officers behaving in ways that betray their training and professionalism, the mob is not the answer in this country.
What we’ve had up to now is mob mentality. Whether the mob is a group of angry citizens looting stores or police officers behaving in ways that betray their training and professionalism, the mob is not the answer in this country. (AP Photo)

Use of Force Examined
In the Garner case, we have a citizen’s video that at least provides us some ready evidence of what occurred in Staten Island. At issue is the use of an alleged choke-hold. There remains to be determined, despite what people believe they saw in the video or what they wanted to see in the video, whether or not the officer used an illegal choke-hold. 

While I personally may not agree with the way the arrest was handled, and I am sure other police officers viewing the video may question the tactic involved, the use of bad tactics does not rise to the level of a criminal offense as some commentators would suggest. 

However, civil liability is a wholly different matter and a founded violation of agency use-of-force policy would create legal exposure to money damages and discipline. Still, the threshold issue remains as to whether or not a choke-hold was used. 

A recent CNN interview of a law professor who proclaimed that the officer’s use of the “choke-hold” was indefensible is a case in point of judgment coming before factual investigation. Aside from being shrill and dramatic in her commentary, the professor was not objective and reasoned in her approach to the situation, especially since the one thing the law permits all those who are — or may be — accused of an unlawful act is a defense. 

Was it “indefensible” in this instance because the alleged perpetrator happened to be a police officer? If that is the case, I mourn for the nature of due process that may be afforded us in the future if we start to distinguish the quality of justice based on occupation. We know such distinctions based on race and social status are wrong — are we now to create an exception because a police officer is involved? 

Police officers are provided an incredible amount of discretion and power under the law. Their daily actions can have a considerable effect on people’s lives. No less do doctors or lawyers have similar life-altering impact upon others, yet they are not second-guessed or publicly excoriated to the extent a police officer is on the nightly news. Police investigators are told to gather the facts; go where the evidence leads. This is the objective standard of proof we want and expect. The officer involved in any critical incident or use-of-force incident deserves no less.

In Ferguson, the rallying point is around the fact that Michael Brown was unarmed. Certainly this fact is a valid point which will cause the involved officer to justify his use of force. But the bare fact of being unarmed, in and of itself, is not anathema to the use of deadly physical force. 

Anyone who feels compelled to voice opinion on the Brown and Garner cases must do so after carefully reading each state’s statute on the use of deadly physical force, the U.S. Supreme Court’s decisions in Tennessee v. Garner and Graham v. Connor, each agency’s use of force policy, and then complete a survey of the decisional law within each federal court circuit in the locations involved (in these two instances the Second and Eighth Circuit Courts of Appeal), and finally, read the relevant state high court decisions. 

Then — and only then — can they intelligently and objectively make comment on the two cases. 

Let the investigations into each case progress unimpeded and let the reasoned judgment and determination of those charged with the public duty to investigate and report their findings be allowed to gather the facts. The officers involved deserve at least that much for no other reason than it is their right under the law and that is what matters most. 

At the end of it all, when the media has gone away, the activists re-focus on something else, and the families on all sides are left alone, the voice of the law will sound loudest and surest.

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