Force Law Cases for Instructors

1. Force Law Cases for Instructors 40 hour F.O.S. Instructor Course

2. Why do we, as Instructors, need to know more case decisions? • Instructors should have a broader base of knowledge in the area than just what is required of the students • The impact of these decisions may help you more thoroughly debrief the scenarios

3. Force Case Law Use of Deadly Force • Tennessee V. Garner • Forrett V. Richardson

4. Tennessee V. Garner • Life-threatening Felony/Crime of Violence • Threatens an officer with a weapon or is believed to be armed • Committed a crime involving the infliction or threatened infliction of serious physical harm • Life-threatening Escape • Poses significant threat to officers or others if allowed to escape • Lethal Force MAY be used • If reasonably necessary to prevent escape • Where feasible, a warning should be given • Halt-Police! Stop or I’ll shoot!

5. Forrett v. Richardson(9th Circuit 1997) • This decision added to and clarified Tennessee v. Garner. • It is not necessary that the suspect be armed at the time of the deadly force application, or threatened an officer with a weapon. • Deadly force may be used to prevent the escape of an individual when the officer has: • “probable cause to believe that the infliction or threatened infliction of serious harm is involved”

6. Forrett v. Richardson(9th Circuit 1997) • In this desperate attempt to escape after committing a violent felony and posing a significant threat to others, the capture of the suspect and limiting opportunities for further violence are crucial • Warning to stop if feasible • “Officers are not required to exhaust every alternative before using justifiable deadly force”

7. Basis of Deadly Force • Objective and reasonable belief his/her life is or another’s is in imminent danger of • Death, or • Serious Bodily Injury 243(f)(4)pc • "Serious bodily injury" means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement. • Given the totality of the facts known to the officer at the time of his/her actions. • Means, Motive and Opportunity • With What (weapon)?...Why?...How?

8. Force Case Law • Objective Reasonableness • Graham v. Conner

9. Objective ReasonablenessGraham v. Connor • Judged through the perspective of a reasonableofficer. • Based on the totality of the facts known to the officer at the time the force was applied. • Based on the facts known to the officer without regard to the underlying intent or motivation. • Based on the knowledge the officer acted properly under established law at the time.

10. Reasonable ForceGraham v. Conner • Reasonable Officer Standard • Would another officer with the same/similar training and experience. • Facing the same/similar circumstances. • Act the same way or use similar judgment? • Not the best decision, only a reasonable decision

11. Reasonable ForceGraham v. Conner The Graham Inquiry of Reasonableness (evaluation factors for the use of force) • The severity of the crime at issue. • The crime the officer is immediately responding to with force, not necessarily the original crime • The threat of the suspect to officer(s) and citizens. • The resistance of the suspect to arrest/escape.

12. Force Case Law • Level of Force/Escalation • Forrester v. San Diego • Level of Force • Scott v. Henrich • Escalation of Force • Reed Hoy • Duty to Retreat 835(a) pc issues • Reynolds v. County of San Diego • Qualified Immunity

13. FORRESTER v. SAN DIEGOLevel of Force • Based on the Graham inquiry of reasonableness • Not simply whether the force was necessary to accomplish a legitimate police objective • Was the force used reasonable in light of all the relevant circumstances • Least-intrusive/minimal v. Reasonable

14. Scott v. Henrich (9th Circuit 1994) • The plaintiff argued that the officers should have used alternative measures before approaching and knocking on the door (less intrusive) • “Officers need not avail themselves to lesser alternatives of force. The test is one of reasonableness, not escalation.” • Officers need not experiment with force by escalating or de-escalating) from one level of force to another

15. Scott v. Henrich(9th Circuit 1994) • The burden of proof that the force was unreasonable in a civil case belongs to the plaintiff. • Now, the plaintiff must prove that what was done was wrong, not what could or should have happened according to the “expert witness” that is working for the plaintiff

16. Reed v. Hoy (9th Circuit 1989) • Officers cannot, while using lawful (reasonable) force, lose their right to self defense: • in making an arrest • overcoming resistance • preventing escape

17. Reynolds v. County of San Diego(9th Circuit 1996) • Plaintiff (wife) sues alleging unreasonable force • Deputy is ruled immune from liability (qualified immunity) and summary judgment is given • He acted reasonably under the circumstances • Plaintiff appeals the qualified immunity grant • 9th Circuit finds grant was proper

18. “Qualified Immunity” • This is a protection that is given to police officers engaged in discretionary acts (acts requiring deliberation or judgment) as long as: • their actions are objectively reasonable • they followed policies of their agencies • If an officer is granted “qualified immunity”, a defense motion for summary judgement can resolve the case • Difficult to get summary judgement in cases when officer is only witness

19. “Qualified Immunity” • Even if the officer violates “some policy” during the situation • The policy must be designed to have protected the plaintiff not officers / not a general guideline policy • Plaintiff must prove injury resulted from the violation of that specific policy which was designed to protect him/her

20. Force Case Law Agency Policy • Long Beach P.O.A. v Long Beach • Peterson v. Long Beach

21. LBPOA v. Long Beach Peterson v. LB • MUST CONFORM TO POLICY NO MATTER WHAT STATE LAW SAYS. • Common issues policies deal with • Defense of self & others against death or GBI • Use of warning shots • Shooting at • Non-violent fleeing felons • juveniles • moving vehicles • Shooting from moving vehicles

22. California State Law Relating to Use of force • Assault under color of Authority 149 pc • Justifiable Homicide by a public Officer PC196 • Justifiable Homicide, any person PC 197 • Justifiable Homicide, Sufficiency of Fear PC 198 • Protection of Home PC 198.5 • Method of Making an arrest, amount of restraint PC 835 • Reasonable Force PC 835a

23. ASSAULT UNDER COLOR OF AUTHORITY PC 149 • “Every public officer who, under color of authority, assaults or beats any person, is punishable by a fine not exceeding ten thousand dollars or by imprisonment in the state prison or in a county jail not exceeding one year, or by both fine and imprisonment.”

24. JUSTIFIABLE HOMICIDE BY A PUBLIC OFFICER PC 196 • In obedience to the judgment of a competent court • When necessarily committed in overcoming actual resistance to the execution of some legal process,or in the discharge of any other legal duty • When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony and who are fleeing from justice or resisting such arrest

25. JUSTIFIABLE HOMICIDE, ANY PERSON - PC 197 • When resisting any attempt to murder any person, or to commit a felony, or to do GBI to any person • When committed in defense of habitation, property or person, against one who intends to enter for the purpose of offering violence to anyone therein • When committed in defense of a person against one who is about to commit a felony or GBI and the person is in imminent danger • When attempting to apprehend any person for a felony committed, suppressing a riot, or keeping the peace

26. JUSTIFIABLE HOMICIDE, SUFFICIENCY OF FEAR PC 198 • Bare fear not sufficient to justify • Must be sufficient to excite the fears of a reasonable person • Party killing must have acted under the influence of such fears alone

27. PROTECTION OF HOME, PC 198.5 • When an owner/occupant uses deadly force inside his residence • Against another person not a member of the household • Who he/she reasonably believes has made an unlawful and forceful entry • It will be presumed that the owner/ occupant was acting with the appropriate “reasonable fear of imminent peril”

28. METHOD OF MAKING ARREST, AMOUNT OF RESTRAINT, PC 835 • Actual restraint of suspect • Mere touch can suffice • California Peace Officers Legal Source Book • Submission to custody • Arrestee subject to amount of restraint as is reasonable for his arrest and detention

29. REASONABLE FORCEPC 835a • A peace officer may use reasonable force to effect the • arrest, • prevent escape, • or overcome resistance • of any person he believes has committed a public offense. • A peace officer need not retreat or desist because suspect resists or threatens to resist • Officer is not deemed an aggressor • Officer does not lose right of self defense by using reasonable force.

30. Peace Officer & Agency Liability (Federal) • Title 18, USC Section 242 (criminal) • Title 42, USC Section 1983 (civil)

31. Title 18, USC Section 242 (criminal) • Peace officers are prohibited from depriving citizens of their rights under the color of the law • If death results, officers may be punishable by life imprisonment or even put to death under this code.

32. Title 42, USC Section 1983 (civil) • Peace officers are prohibited from depriving citizens of their rights under the color of authority

33. Tactical Failures Creating owns exigency • Starks v. Enyart • Alexander v. City and County of San Francisco • Quizada v. Bernanillo County

34. Starks v. EnyartShooting at Moving Vehicles • Officers can lose their protection of qualified immunity if they knowingly place themselves in front of a fleeing vehicle. • Absent Tennessee v Garner considerations and protections

35. The End