Less Lethal Issues in Law Enforcement
with Capt. Greg Meyer (ret.)
Use of force caught on tape: What's next?
By Greg Meyer, PoliceOne columnist
Sponsored by TASER
The Hollywood Division officers “caught on tape” in a use of force incident provide the latest example of public outrage over police use of force [Read more]. Although the public and the media want immediate answers, it will be awhile before anyone can provide an objective analysis of the entire event.
The increasing proliferation of video cameras guarantees that more and more police incidents will be captured. So it seems to me to be useful to attempt to provide some context about how such incidents are analyzed. For the past 17 years, I’ve worked as an expert witness on civil and criminal use of force cases around this country, usually in favor of the police, sometimes not, and some with video, some not.
The truth almost always lies deeper than the video.
Many are tempted to pass judgment on the basis of a shocking video. “It speaks for itself, the police beat this guy for no reason,” many would say (and have already said in this case). We have the usual outraged headlines and outraged Southern California ACLU judgment before the facts are in, and we have the usual outraged attorney with dollar signs rolling in his eyes. All of that is par for the course.
Regardless of the eventual analysis when all the facts are included, there are a few glaringly obvious facts about this video.
First of all, there is not just one video. There are three videos of this incident posted on YouTube. One is 19 seconds long. One is five seconds long. One is one second short. They each capture a different part of the incident.
The videos were captured via someone’s cell phone camcorder. You should wonder (I do) about why the two shorter videos published on YouTube are so short. And you should wonder why the longer video suddenly stopped just as the suspect’s right hand was approaching the gun holster of one of the officers. Were the videos edited to someone’s advantage? Or was it just the luck of the draw and the vagaries of an amateur pushing buttons on the cellphone? We would all be better off if entire incidents were captured, but we rarely have that luxury. Still, it’s important to note that such videos don’t capture the point of view of the officer involved in the heat of the incident.
Second, newspapers have published excerpts of the officers’ own report of the arrest, in which they admit hitting the suspect in the head after describing the suspect’s alleged resistance to arrest. It’s very clear watching these videos that the officers are attempting to handcuff the suspect (one cuff is already on one wrist) but the suspect is not allowing that to happen.
Third, it is very interesting that the court commissioner who looked at the video (which was recorded in August) refused to dismiss the criminal case against the suspect, and stated, “The issue here is not whether the officers had to use force. The question is whether or not the defendant used force in resisting the lawful arrest, and I find that he did resist, using force.”
The fact-finding missions by the internal affairs processes of the Los Angeles Police Department will play out, as will the investigation by the FBI, as will the criminal court case involving the suspect, as will the suspect’s forthcoming lawsuit. It will be quite awhile before all the facts and opinions are in about whether the officers acted reasonably or not.
Use of force by police in this country for the past 17 years has been judged by Graham v. Connor [490 U.S. 386, 109 S.Ct. 1865 (1989)]. Very few citizens have had the opportunity to sit in judgment, whether criminal or civil, in police use of force cases. There aren’t that many criminal cases brought (cops, after all, are the only ones that society gives authority to use force proactively), and the civil suits are most often settled or dismissed before trial.
When there is a trial, what jurors wrestle with are the requirements set forth by the Graham case. When police must use force, the Court says, the force must be “objectively reasonable” with respect to the facts and circumstances the officer is facing, and without 20/20 hindsight.
The court decided that, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.” Also what must be considered are the severity of the crime, the immediate threat to the safety of the officers or others, whether the suspect is resisting arrest or attempting to evade arrest by flight.
The list of facts to be considered is lengthy, but its highlights include: the number of suspects and officers involved; the size, age and condition of the suspect; the known or perceived fighting ability of the suspect; the duration of the action; the experience level of the officers; the distance from the officers to the suspect; and the weapons (including the officers weapons) in the immediate vicinity of the suspect.
Law enforcement officers are unique in society because they are permitted by law to use physical force to compel others to do their bidding. Officers intervene in a variety of urgent, unpredictable situations, and their mission is to keep the peace or to restore it. This awesome power must be wielded sparingly in a democratic society. The public rightly holds public administrators, including police officials, responsive to public preferences and demands. When officers use force they must do so to control a situation, not to punish an offender.
Use of force by police naturally upsets onlookers across the street as well as viewers of the six o’clock news. Conditioned by fictional media depictions of sanitized violence on one hand and fantastic "megaviolence" on the other, most people have no frame of reference other than personal emotions to evaluate an incident. The average viewer has little or no experience with real violence and the chaos that typically surrounds it.
People tend not to understand even legitimate use-of-force incident dynamics; people are repulsed when they see force applied to a fellow human being. But force is used in relatively small percentages of police confrontations, and people should not be surprised or offended that police must occasionally use force.
Los Angeles Police Chief William Bratton and Mayor Antonio Villaraigosa are right to express concern about the Hollywood incident because the incident is obviously of concern to the public. But the Chief and the Mayor are also right to withhold judgment until the various investigations play out.
The public—and the media—would do well to listen to them.