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Home  >  Topics  >  Legal

April 21, 2011
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Ed Flosi Taking Training to the Next Level
with Ed Flosi

Clearing up (even more) misconceptions about legal standards for police use of force

Two weeks ago, I examined several statements regarding the legal standards and limitations of a law enforcement officer’s use of force. The current legal standards set by the U.S. Supreme Court have been in place for several years now. The guidelines are commonly thought to be written and interpreted in our favor as long as the officer is acting in a reasonable manner.

Occasionally we hear from a particular Circuit Court of Appeal that rules on a specific case based on the unique facts and circumstances in that case. It is generally unwise to take one part of those decisions and try to overly apply them to all future cases as some sort of one-size-fits-all template.

“Officers need to consider secondary injuries.”
This direction is part of the “objectively reasonable” balance when deciding about the officer’s actions but it needs the same explanation as in many of the statements in part one, it is only partially complete. If the situation allows for consideration (“when feasible”) based on the pace of the event, officers should consider secondary injuries. A more accurate statement would be that officers need to consider the reasonable expectation of injury to the suspect when using force.

A reasonable balance must be struck between the governmental interests (severity of the crime at issue, the threat of the suspect posed to officers/others, and the level of resistance – “why” the officer used force) with the intrusiveness of the force used (“what” force option and “how” it was used — the reasonable expectation of injury).

“Shooting a fleeing suspect in the back would not be reasonable in any circumstance.”
This is a ridiculous assertion but what is most disturbing is that it was made by an attorney that defends law enforcement officers. The U.S. Supreme Court made it clear in Tennessee v. Garner that an officer may use reasonably necessary deadly force on a fleeing suspect if there is probable cause to believe that; (1) the fleeing subject poses a threat of death or serious physical harm, either to the officer or others (if allowed to escape), and (2) the subject has committed a crime involving the infliction or threatened infliction of serious physical harm. There is an additional requirement of a warning, when feasible.1

“Any more than three electronic control device cycles is automatically presumed unreasonable.”
This pontification of a bright line rule of law simply does not exist. It might have started from a confusion of accepting a manufacturer’s guideline as a legal standard. This might have been combined with a misinterpretation of a specific case that involved a decision where the court ruled the first three cycles as reasonable and the subsequent cycles unreasonable. The decision in that case would have been based on the facts of that event. The fallacy of taking such a precise statement from a specific case and trying to apply it as a universal rule is that each use of force must be evaluated based on the facts and circumstances specific to that event.

“Law enforcement personnel are trained to shoot to kill.”
It is understood that as a law enforcement officer, one may be forced to take a life in order to save a life in certain circumstances. Law enforcement officers do not “shoot to kill,” nor do they “shoot to wound.” In a situation where an officer has made the decision to use deadly force, the suspect is acting in a manner that is causing an imminent/significant threat to life and those actions must be immediately stopped. Officers use deadly force to stop or apprehend.

The idea of an officer using deadly force to stop a life endangering threat is consistent with law, ethical responsibilities and with current police training. It is well known that by shooting center mass an officer is more likely to hit something that will stop the threat. This is purely a tactical issue as under stress it is impractical to believe an officer can stop the threat in an appropriate time by accurately hitting other parts of the body.

It is also well known and accepted, that shooting center mass may cause death. Although this is an unfortunate result of targeting center mass, it should not be the intention of the officer using the deadly force. An expressed intent of death may prejudice the officer in the minds of the jury depending on the circumstances. The intent of the officer should only be to stop or apprehend the suspect.

“Officers must give a warning before using force.”
It is generally accepted from a legal and tactical viewpoint that it is a good idea to give a warning before using force, if it is feasible based on time restrictions and tactical considerations. A warning gives the suspect an opportunity to submit. Another way to approach this is to examine what an officer should do if a warning is not given. An officer should be prepared to articulate with objective and reasonable facts as to why it was not feasible if a warning was not given.

Conclusion
Revisiting the conclusion in part one, it is most important to remember that officers have enough factors to process in their reasonable force decision making. These factors include, but are not limited to: (1) the severity of the crime at issue, (2) the threat of the suspect to the officer or others, and (3) the amount of resistance given by the suspect.2 Until the rules officially change, it is important that trainers do not get so wild with speculation and creative over-interpretation of what the courts may be trying to indicate that officers become tentative in using force when it is objectively reasonable.


1 Tennessee v. Garner, 471 U.S. 1 (1985)
2 Graham v. Connor, 490 U.S. 386 (1989)


About the author

Ed Flosi is a retired police sergeant in San Jose (Calif.). He has been in law enforcement for more than 27 years. Ed has a unique combination of academic background and practical real world experience including patrol, special operations and investigations. Ed was the lead instructor for use-of-force training, as well as defense and arrest tactics for the San Jose Police Department. He has been retained in several cases to provide testimony in cases when an officer was alleged to have used excessive force. He has assisted the California Commission on Peace Officer Standards and Training (POST) in providing expertise on several occasions related to use-of-force training. He has a Master of Science degree from California State University Long Beach and holds an Adult Learning Teaching Credential from the State of California. He teaches in the Administration of Justice Department at West Valley College.  He is currently the Principle Instructor for PROELIA Defense and Arrest Tactics.

Contact Ed Flosi.





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