Use of Force – Part 1 #FOP #FOPNO #NOPD

20130618-201545.jpgMy intention here is to post a number of articles all related to Use of Force.  I am going to begin with a recap of the U.S. Supreme Court decision in Graham v. Connor, 490 U.S. 396 (1989).  I will review some Louisiana legislation as it relates to all citizens and law enforcement.  I will be discussing the AELE Use of Force Reporting Guide, which you can access by clicking here.  You should keep a copy of the Use of Force Reporting Guide handy.  You can also pull up a copy of the Use of Force Reporting Guide using the FOP CCL2 mobile app.  Once that is covered, I will move on to some more specific info as it relates to the policies and procedures of the New Orleans Police Department.  If you, the dedicated reader, would like to see something specific along the way, feel free to bring it to my attention.

The legal tradition in Louisiana is mainly contained within the various codes containing the law.  The Code of Criminal Procedure is where we can find authority to use force effect an arrest.

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.  La. Code Crim. Proc. Ann. art. 220.

We can make a few determinations based on the contents of this provision alone:

  1. Citizens only have the duty to submit peaceably to a lawful arrest.
  2. The force used must be “reasonable”
  3. Once any resistance or threat of resistance ceases, so does the authority to use force.

In fact, La. R.S. 14:19, entitled Use of Force or Violence in Defense states:

The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.
La. Rev. Stat. Ann. § 14:19

As you can see, the standard that protects your average citizen is substantially similar to the standard that protects law enforcement officers — reasonable and apparently necessary.

U.S. Supreme Court building.

U.S. Supreme Court building. (Photo credit: Wikipedia)

Graham v. Connor

Graham was a diabetic.  He had been performing some mechanic work and had not been feeling well.  He asked a friend of his to drive him to get some orange juice.  His friend, Berry, drove Graham to a convenience store.  As it turns out, Connor, a police officer with the Charlotte Police Department in North Carolina, was sitting in the parking lot of the convenience store.

When he got to the convenience store, Graham got out of the car he was riding in and entered the store.  When he got inside, he decided the line was too long and left the store. Graham then asked Berry to drive him to a friend’s house where he would be able to counteract his low blood sugar.

Connor, sitting in the parking lot, observed Graham walk into the store hurriedly.  He also observed Graham exit the store in a hurry and jump back into his car.  Connor found Graham’s actions to be suspicious.

Connor initiated an investigative stop of Berry’s vehicle.  After Connor told Graham and Berry to sit tight while he found out what happened at the store, Graham exited his car, ran around the car twice, and then passed out.  Graham was subsequently handcuffed.  As you probably know, or at least suspect, the officers learned that nothing had happened at the convenience store.  Graham suffered some minor injuries.  He later filed a federal civil rights claim against Connor, et al.

The lower courts ruled in the officers favor, applying a standard of review relative to a 14th Amendment “substantive due process” claim.  The case continued up to the U.S. Supreme Court where the court ultimately remanded the case for additional proceedings.

The U.S. Supreme Court rejected the notion that excessive force cases should all be handled as 14th Amendment cases.  Instead, the Court held that a 4th Amendment seizure occurred when officers used force.  In Graham’s case, he was bodily seized when the handcuffs were applied.  Since the force used constituted a seizure, the determining factor would be reasonableness.

Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ ” against the countervailing governmental interests at stake. Id., at 8, 105 S.Ct., at 1699, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S., at 22–27, 88 S.Ct., at 1880–1883. Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8–9, 105 S.Ct., at 1699–1700 (the question is “whether the totality of the circumstances justifie[s] a particular sort of … seizure”).

Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871-72, 104 L. Ed. 2d 443 (U.S.N.C. 1989)

The reasonableness of the use of force is to be judged from the perspective of a reasonable officer on the scene, without the benefit of 20/20 hindsight.    The Court went on to hold:

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.
Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (U.S.N.C. 1989)
Louisiana Supreme Court

Louisiana Supreme Court (Photo credit: Wikipedia)

In Louisiana, the reasonableness standard is already incorporated into the Code of Criminal Procedure, as mentioned above.  The Louisiana Supreme Court stated:

Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers.

Kyle v. City of New Orleans, 353 So. 2d 969, 973 (La. 1977)

I will leave you with this:

Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment.

Kyle v. City of New Orleans, 353 So. 2d 969, 973 (La. 1977)

This link is to the AELE’s Use of Force Reporting Guide.  There is also a link to the Use of Force Reporting Guide in the FOP CCL2 Smart Phone App.  It is an excellent reference guide and everyone should familiarize themselves with it and keep a copy handy for quick reference.  Next time, I will discuss the types of things in the Use of Force Reporting Guide more thoroughly.

FOP CCL2

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3 thoughts on “Use of Force – Part 1 #FOP #FOPNO #NOPD

  1. Donovan,            That was very useful and informative.  Helpful to keep in a file and refer to.                  Wally Lore

  2. Pingback: Use of Force – Part 2 #FOP #FOPNO #NOPD | Signal 108

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