There are few sure things in life. We all know that morning will start a new day, but what that day will bring is as random as any chance at the roulette wheel. Life does give us some absolutes: taxes come due every April 15 and death eventually stalks each one of us — thanks, Ben Franklin.
But every working police officer knows there is an additional certainty. It is a simple unavoidable truth. Police use of force will be analyzed, reviewed, and second-guessed.
If deadly physical force is used, the analysis, review, and second-guessing will be amplified carrying with them the added potential to result in lawsuits or worse, criminal charges. This is the baggage that comes with pinning on the shield. Accept it and prepare yourself for it. Acceptance doesn’t mean to imply you are doomed to a pre-determined fate. Rather, acknowledge it the same way you accept other hazards of the job.
State Statutes and Case Law
Every day you rely on your training to carry you through to the end of a shift. However, don’t limit your understanding of “training” to survive such use of force encounters as practicing at the range, defensive tactics classes, and working out to remain aerobically and physically strong. Training should also include frequent review of agency policy, state statutes and federal guidelines on the use of force. This is a legal sandpit which can swallow the uninformed.
Every officer must know the U.S. Supreme Court holding in Graham v. Connor — the standard for police officer use of force is one of “objective reasonableness” — but it is equally important that officers know their specific state statutes concerning use of force.
In many states, the appropriate statute can be found in the penal code section outlining the defense of justification. Criminal law permits two basic defenses to conduct which would otherwise be considered criminal — one is an excuse defense (for example, insanity), the other is a justification defense such as self-defense. While civilians are required to retreat in most states (except for those with “stand-your-ground” laws) police officers are not under the same requirement.
A justification defense is a legal standard by which otherwise illegal conduct is deemed to be lawful under the circumstances. The justification aspect of the defense negates a needed element for any prosecutor to prove an unlawful act, which is the existence of a culpable mental state (mens rea). Culpability for unlawful conduct must be proven by showing a concurrent mental state of purposeful, knowing, reckless or criminally negligent conduct. Any prosecutor who questions the reasonableness of an officer’s use of force, particularly deadly force, when considering a potential criminal charge will focus on trying to prove the existence of one of these culpable mental states.
Appropriate use of force is a lawful response to an unlawful situation. Justified use of force should not be second-guessed by recent events around the country. However, post-incident reviews have indicated otherwise, therefore it is up to the officer who has applied force to be able to explain the reason for the force used.
If an officer acts outside of agency policy and training in the application of force, it may lead to a determination of unreasonableness. This, in turn, will have civil ramifications in the form of a lawsuit.
Similarly, the municipality may refuse to defend the officer which certainly means it will not indemnify the officer for any damages awarded by a jury. Even though the U.S. Supreme Court has historically been supportive of law enforcement in cases involving qualified immunity determinations based on constitutional claims, state case law may provide less protection. State courts can take a more expansive view of individual civil liberty protections under state law.
It is for these reasons that officers must insist their agencies provide regular up-to-date training on the law pertaining to use of force. My experience as an attorney working with law enforcement officers has found that while many officers seek to stay current, they are hampered by agency mindsets still relying on out of date use of force directives. This is not only inexcusable but it can be used by a civil plaintiff to show a department’s lack of training or a municipal policy or custom leading to liability.
Preparedness has always been a key component of officer safety. This is as critical a mindset for post-incident use of force reviews, both from within and outside the department. The only one who can justify the action taken is the officer. A thorough knowledge and understanding of legal guidelines is as necessary as any other aspect of your training.
