When I ask new recruits to justify a shooting scenario they always come back with ability, opportunity, and jeopardy. Ability, does the offender have the means to kill you? This could include hands, sharp object, a 2X4 board. Do they have the opportunity to kill or inflict serious bodily injury? A man standing in an open field with a .22 caliber pistol at 10 yards would have a significant opportunity to kill or inflict serious bodily harm. What if the range were 100 yards? Something officers would have to justify. Jeopardy, is jeopardy there is the officer or, 3rd party in hazard or risk of exposure to loss, harm, death or, injury.
A simple example would be he has a .22 pistol 3 inches from a 3rd party or, your head. You got to admit jeopardy is there. However is this the answer we should hear? Is this the answer we get? Is this the answer we want to hear?
In Garner v. Tennessee the United States Supreme set guidelines of how to judge the use of deadly force. There were provisions that must be taken into consideration. Was the officer or, third party in imminent threat of death or serious injury when deadly force was used? Also, if the offender was fleeing did the officer have probable cause to believe the offender had been involved in a violent felony involving the infliction or threatened infliction of serious bodily harm or death? All police officers should know and read the Garner decision. They need to understand the Garner decision. Then follow up by asking the hard question. Was it proper to shoot a 16 year old fleeing a burglary? Let them think on it. We must reinforce the Garner decision to the troops.
Garner was the standard for justifying deadly force. However, we were still at a loss in as far as gauging every day use of force complaints. In 1985 the United States Supreme court gave us the tools needed to be within the scope of the law in Graham v. Connor. The facts of the case were that Graham was a diabetic who realized he was on the brink on an insulin reaction. A friend drove him to a local store. Once there it was apparent the line was long and he would have to go elsewhere. He left the store a hurriedly got into the friend's car and the left. A police officer had seen Graham left the store quickly and aroused his suspicions.
The officer pulled Graham and his friend over a ½ mile away from the location for an investigative stop. The friend informed the officer that Graham was suffering from "sugar reaction". The officer ordered both from the car and called for assistance. When the other officers arrived Graham was tightly handcuffed, shoved face first against the hood of the friend's car then "thrown head first into a police car."
Eventually, the officers received information that Graham had done nothing wrong at the store. They released them and the officers took him home. Graham received multiple injuries during the incident.
"One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring Berry's pleas to get him some sugar. Another officer said: "I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the M. F. but drunk. Lock the S. B. up." (App. 42). Several officers then lifted Graham up from behind, carried him over to Berry's car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to "shut up" and shoved his face down against the hood of the car. (Graham v. Connor 827 F2d" 490 U.S. 386; 109 S. Ct. 1865; 104 L. Ed. 2d 443; 1989 U.S. LEXIS 2467; 57 .S.L.W. 4513")"
Graham filed a 42 USCS 1983. The officers moved for a directed verdict. The district court allowed the officer's motion. The district court found that the officer's excessive force since the amount of force used was:
- was appropriate under the circumstances
- did not inflict any discernable injury, and
- was not applied maliciously or sadistically for the very purpose of causing harm, but in a good-faith effort to maintain or restore order in the face of a potentially explosive situation
(644 F Supp 246).
Graham appealed the case to the United States Supreme Court. The United States Supreme Court granted certori. In reviewing all the evidence they court remanded the case back to the trial phase. However they gave us a formula to look at in use of force cases. They are:
- How serious was the offense that the offender was suspected of or had committed?
- Did the suspect pose a physical threat to the officer or some other person at the scene?
- Was the suspect resisting or attempting to flee?
We can Monday morning quarterback on each and every case that comes across the desk. In reality all we need to do is answer these questions. When we do we have done our job it will stand the scrutiny of all. The courts have given us the tools to do our jobs.
