Understanding the Use of Force: An Interview with Tim Miller

UK Police officer w/Gun

Law Enforcement Officers are there to "protect and serve." It often part of why they sign up. It's often one of the things mentioned in a law enforcement agency's mission statement or objectives. 

Some would say it's a very part of an officer's DNA.

"Protecting and serving" can take the form of many things. It can be seen when an officer has pulled over a car, the driver going well over the speed limit, hopefully preventing an accident down the road. Or when officers respond to a large, loud college party, warding off a drunken brawl. Or even when officers respond to a domestic disturbance, hopefully preventing a spouse from becoming yet another statistic. 

But occasionally, "protecting and serving" means drawing a service arm. And far less frequently than perhaps what media might make it seem, occasionally that means firing that weapon: to protect innocent bystanders, to perhaps rescue the occasional hostage, and yes, even to protect themselves or their partners.

The Washington Post reports there have been 411 officer involved fatal shootings since the beginning of 2017, on trend to indicate potential decline from  2016 and 2015 statistics. 

Officer Involved Shootings
Data Source: Washington Post

 

Justice Clearinghouse spoke at length with Tim Miller of the Federal Law Enforcement Training Centers (FLETC) to explore this topic further.

Tim is the FLETC Legal Division's subject matter expert in the Use of Force. He joined the United States Marine Corps in 1984 after taking the Illinois state bar exam. During his 20-year active-duty career, he served as a prosecutor, defense counsel, military judge, and staff judge advocate. Mr. Miller joined the Legal Division for FLETC in 2004.  

 

Justice Clearinghouse Editors (JCH): Let’s start with some basic terminology.  When you say “Use of Force,” what does that mean?

Tim:  “Use of Force” is generally meant to be the force used to seize someone. A seizure within the meaning of the Fourth Amendment occurs when a law enforcement officer terminates a free citizen’s movement by a means intentionally applied. Traffic stops, investigative detentions, and arrests are all Fourth Amendment seizures. To seize someone an officer may yell, “Stop!” The officer may use a baton or firearm to make him stop. A seizure must be objectively reasonable – meaning reasonable in its inception, the degree of force used, and its duration. “Use of Force” focuses on the degree of force an officer can use to make someone stop. The Supreme Court stated in Graham v. Connor that all claims that law enforcement officers have used excessive force to seize a free citizen should be analyzed under the Fourth Amendment’s objective reasonableness standard.

 

 

JCH: So is every use of force a seizure?

Tim: No. Let’s consider some examples. No doubt the police seized a fanatic gunman named Dwight Pink. They intentionally shot him. But another element of an unreasonable Fourth Amendment seizure is … well, that it be unreasonable and before dying in a hail of gunfire Pink had shot a car salesman, commandeered a school van to escape, and took the driver and children hostage. The case was not about Dwight Pink. It was about one of the child-hostages in the school van. A bullet fired by one of the officers ricocheted off a seat and hit young Joshua Sawicki in the back. He died about a year later.

Joshua’s estate sued, claiming that he was seized under the Fourth Amendment; but the court dismissed the case.  The officer did not intend to seize Joshua.  The officer meant to liberate him from Pink.

The same conclusion was reached after escaped convicts stole a mini-van, took a mother and child hostage, and used them as human shields from police gunfire — going so far as to hold the infant out of a window as the van sped through a roadblock. The police fired anyway, and after it was all over no one claimed that the shots fired by the police did not also hit the mother and her child; nor was there any serious dispute that the officers knew they were in the van. Still, the officers intended to restrain the fugitives.

The mother tried to claim that it was enough to seize her and the child when the officers deliberately fired at the van, knowing they were inside. But the court rejected the notion that a bullet intended for a hostage-taker, which accidentally hits the hostage, results in the type of detention that the Fourth Amendment was intended to govern. The Fourth Amendment is a check on misuse of government power, not the accidental or unintended consequences of otherwise lawful government conduct.

Certainly, an innocent person may receive Fourth Amendment protection. Call it a mistake of identity when an officer confuses a hostage for the hostage-taker and shoots the hostage. But the Fourth Amendment will not protect someone from just a bad shot.

 

Reasonableness in Use of Force
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JCH: You’ve stated that a seizure requires an “intentional acquisition of control.” What does that mean?

Tim:  The suspect must stop due to something the officer did to achieve that result. Obviously, Dwight Pink was stopped by something the officers did to achieve that result. This is not to say that someone must be stopped by the very way the officer intended. Otherwise, the officer could shoot a suspect in the heart, but claim that no seizure occurred because “I was aiming for his foot.”

The unintended consequences of an intentional acquisition of control are not relevant. Consider a case where an officer unintentionally shot and killed a man inside a house where officers were executing a narcotics warrant. It was enough to seize the man when he was forced to the floor with the loaded gun to his head. From there the analysis switched to whether the seizure was reasonable, and the facts suggested it was not. The man was elderly; he was non-violent; and the officer was holding the loaded gun to the back of his head – – with the safety off – – when he unintentionally pulled the trigger.

 

JCH: The significance of seizing someone is that the seizure triggers the Supreme Court’s objective reasonableness test in Graham v. Connor.  Can you describe the test?

Tim:  The Court stated that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. The bottom line: Could a reasonable officer (which is obviously the court, looking at the facts through this hypothetical lens) believe that the force fell within a range of reasonable options?

Since the objective test judges the officer through the lens of a reasonable officer, the subjective beliefs of the actual officer – whether good or bad – are not relevant. The officer in Graham v. Connor may have honestly believed that Mr. Graham was a shoplifter; however, the objective test asks what a reasonable officer could believe based on the facts.  Facts make force reasonable.

Frequency of Use of Force Police Shootings
Infographic from The Police Foundation.
 https://www.policefoundation.org/general-resources/use-of-force-infographic/[/caption]

 

JCH: What happened in Graham?

Tim:  The Supreme Court didn’t say whether seizing Mr. Graham was reasonable or not. The Court sent the case back to the lower court with instructions to follow its objective test. What follows are some facts that might cause a court to find the force reasonable. Some of these facts are for illustrative purposes and are not in the Graham decision.

Officer Connor suspected that Graham stole something from a convenience store. To support that suspicion, he might write in his use of force report:

“I saw Mr. Graham run into a convenience store. Moments later, I saw him run back out and get into a passenger car. I learned later that Mr. Berry was behind the wheel. I heard the tires screech as the two sped away.”

Training and experience is important. Connor might add: “Based on what I saw, and my department having received no less than four complaints of shoplifting from this store within the past two weeks, I activated my overhead lights and Berry pulled to the side of the road.”

Connor would be admitting to effecting a Fourth Amendment seizure, but it’s reasonable if Connor can point to specific articulable facts indicating that criminal activity is afoot.

The officer must help the court visualize what happened. Good action verbs make that visualization possible.  Connor might write in his use-of-force report:

After Berry stopped, I walked to his car. I saw Berry behind the wheel. I saw Graham seated on the passenger seat. I told both of the men to wait at the car. I ordered another officer to go back to the convenience store and find out what happened. Then Graham got out of the car. He opened the passenger door, ran around the car, sat-down on the curb and fell over – as if he had passed out.

Conclusions are generally appropriate if supported by facts. Connor might state:

I believed that Graham was under the influence of alcohol based on my experience with intoxicated people. They are generally irrational. Graham was irrational; he ran around the car two times after I (a police officer) told him to wait at the car. Then he sat on the curb and fell over – as if he passed out.

To support his opinion that Graham was intoxicated, Connor might add:

“Graham’s eyes were glassy. His speech was slurred. His breath smelled sweet, like alcohol.” Referring back to his training and experience, Connor could explain why intoxication is relevant. “I know that many assaults on police officers are committed by people under the influence of alcohol or narcotics.”

 
 
JCH: But Mr. Graham was innocent. He wasn’t a thief or drunk; he was diabetic. When he ran into the store he was looking for some orange juice, hoping that the sugar in the juice would counteract a diabetic reaction he was having. Unfortunately, the line was too long so he ran back out, jumped in Berry’s car, and sped-off for a friend’s house. When Connor stopped them they were going to the friend’s house for juice.  How can it be reasonable to seize an innocent man?

Officers are judged based on the facts that are reasonably known to them at the time they used the force. What they learn later (after-the-fact) is generally not relevant under the objective test. What was not available to the officers when Graham was initially stopped, handcuffed, and put in the cruiser was the report from the officer who returned to the store. Nothing was amiss. But using that report would be judging the officers based on 20/20 hindsight.

The no “20/20” hindsight rule probably worked to Officer Connor’s advantage in this case. But what if Connor had learned the next day that Mr. Graham had previously assaulted a police officer? In that case, the rule would work to Connor’s disadvantage. Again, what were the facts reasonably known to the officer at the time?

 

Police Use of Force
Photo Credit: Homeland Security News Wire

 

JCH:  So how does a court decide whether force was reasonable or not?

Tim:  Whether force is reasonable is a question of what and why. What did the officer do (or what was the nature of the intrusion on the suspect’s liberty); and based on the facts, why did the officer do it (… the governmental interest at stake that justified the intrusion)? The Graham factors are governmental interests for using force. They are like a non-exhaustive checklist of possible justifications. The Graham factors are the severity of the crime at issue; whether the suspect posed an immediate threat to the officer or others; and whether the suspect was actively resisting or trying to evade a lawful seizure by flight.

With the facts, the court can determine what Graham factors apply, and whether the force was reasonable. In Graham, for example, the offense at issue was possible shoplifting; and the initial intrusion on Graham’s liberty was sitting in a car beside the road. While the intrusion on his liberty became much greater, the governmental interest at stake probably did too. Recall that Officer Connor ordered the men to wait at the car, and that Graham resisted that order. He got out. Add that to evidence of Graham’s possible intoxication (the running around and passing out), and a reasonable officer might believe that Graham posed an immediate threat to Officer Connor; to other motorists on the adjoining road; or to Graham, himself.

 

Officer Service Weapon
Photo Credit: Readers Digest

 

JCH: Since the Graham decision in 1989, the lower courts have added other factors to consider. How would you describe these other factors?

Tim:  Most are a subset of what is generally considered the most important Graham factor — an immediate threat to the officer or others. For example, what is the size, height, and weight of the suspect compared to the officer? Is the suspect 200 pounds with cauliflower ears, or is he an 85-year-old man who weighs 100 pounds?  Either one of them may yell, “I’ll kick your $#@!” but is the threat objectively reasonable?

The officer would also want to know a suspect’s violent criminal or psychiatric history, if possible. But be mindful that mental impairment is not the green light to use force. Shocking a man several times with an electronic control device was excessive in a situation where he had been involuntarily committed, but committed no real crime. The man grabbed a post, was seated on the ground, and was surrounded by police and hospital staff.  The static stalemate did not create an immediate threat.

Time is important. A robbery suspect who reaches into his waistband creates some split-second decision making for the officer; more deference should be given to the officer. But not every situation requires split-second decision making. In a case where someone simply refuses to do what the officer says, OC spray is probably unreasonable.

 

JCH: What is the most important thing for law enforcement to keep in mind in their day-to-day encounters – something they may have to apply tomorrow after reading this?

Tim:  Police officers do not have to be perfect; they have to be objectively reasonable. The perfect answer in Graham was to do nothing, or better yet, escort Graham to the head of the line back at the convenience store. But perfect answers require all the facts – – and waiting for all of them may allow a suspect to get away, or pose an unreasonable risk to the officer.

This is not to say that an officer can spout-off mere conclusions and expect a court to exonerate him.  We live in a society that balances law enforcement with individual freedoms, and the great leveler in that balance are the facts.  We tell our students to paint the picture.  After a use-of-force scenario, an instructor might tell a student, “Pretend that I’m a judge; that I am not your friend; and that I did not see what happened. Paint the picture for me.” We teach the students to replace mere conclusions like, “He was non-compliant” with factual statements like, “I ordered him to stay in the car, and he got out.”  Again, facts make force reasonable.

 

Police Officers Use of Force
Photo Credit: Reference.com
JCH: What do you think is the biggest misunderstanding about use of force?

Tim: It goes back to the meaning of these two words – – objective reasonableness. On one end of the spectrum are officers who believe they can spout-off conclusions and that a court will agree with them.  On the other end are those who believe they must use the least amount of force.

We try to keep our students on the road to reasonableness, and out of the ditches. Believing they must use the minimal force can cause unnecessary hesitation and get them hurt; but not thinking about the facts can lead to a successful lawsuit for excessive force.

 

JCH:  Use of Force has become a hot topic. In our recent Justice Clearinghouse polling, half of those responding said “yes” to the question “Would recent media events cause you to hesitate if you had to use force?” How would you coach those officers and the agencies they work for?

Tim: Objectively reasonable force is just as much the responsibility of the employing agency as the officers. A written use-of-force policy is a start, but certainly not enough.  Expecting officers to make good decisions only after signing a policy is like giving the football team the playbook before the homecoming game and expecting it to win. Realistic, scenario based training is necessary to reinforce the constitutional standard. And while the agency may certainly set heightened requirements above the constitutional minimum, the agency should clearly establish what those requirements are and reinforce them in training. It is easy to tell police officers to de-escalate; it is difficult to establish when to do so.

 

Police with Gun
Photo Credit: Policetest.info
JCH:  We have all read newspapers headlines like, “Police Officer Shoots Unarmed Man.” Allegations are subsequently made, lawyers are hired; but then the case may be dismissed. If a reporter asked you why some of these cases seem to go away (and you had to explain in a 60-second sound-bite) what would you say?

Tim: The answer probably lies in the constitutional standard and a defense to standing trial that protects all but the plainly incompetent. Graham allows police officers to react to the threat of violence, rather than just violence itself. It does not require them to wait for the gun to be pointed at them, or that they even wait to see the gun. Whether force is reasonable depends on the facts reasonably known at the time. In short, what could a reasonable officer believe? And when the facts come together that someone poses a significant threat, shooting falls within the range of reasonable options. Shooting doesn’t have to be the best option. Hindsight might say “Wait…don’t open that door!” But requiring police officers to weigh every option in a split- second would require superhuman judgement.

The other part of this answer lies in the officer’s defense to standing trial for a constitutional tort called, “qualified immunity.” If sued, a police officer can request qualified immunity, and if granted the case against the officer is dismissed. To proceed to trial, the plaintiff must present some evidence that the officer violated a clearly established constitutional right. In short, Supreme Court and circuit court decisions must clearly put the officer on notice that what he did violated the Constitution. Qualified immunity is designed to protect all but the plainly incompetent officer, or the officer who knowingly violates the law. It is not a noble standard to live up to, but has a place in situations where officers must decide whether to ignore a call, and be fired, or answer the call, and face a civil lawsuit. Should they choose to answer the call, qualified immunity prevents judges and juries from second guessing them when things go wrong. Unless the law clearly told the officer “You can’t do that … You should not have gone through that door!” the case is dismissed.

 

JCH: The Federal Law Enforcement Training Centers have resources to help officers learn more about use of force. Can you tell us about them?

Tim: Sure. Go to our website at www.fletc.gov/legal-resources. Also, you can sign up for the Federal Law Enforcement Informer by emailing Kenneth.Anderson@fletc.dhs.gov. The Informer is a monthly electronic newsletter of recent Supreme Court and circuit court decisions relevant to law enforcement.

 

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