The Standard for Use of Force

I have heard some talk recently about a need to re-visit the standard for determining whether a use of force by police officers is excessive.  This article in the New York Times written by Yale Law students illustrates the nature of the movement.  Here are some problems with the arguments presented in this article.

At the most basic level, the law in Louisiana does not give law enforcement any extra authority to use force against others except that La. C.Cr. P. Art. 220 provides:

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.

It is the word “reasonable” which causes consternation for folks such as the authors of the above referenced N.Y. Times article.  Here, the reasonableness referred to is the degree or type of force.  Of course, the flip-side to this article is that people have the right to use reasonable force to resist an unlawful arrest.

In order for something to be “reasonable” it has to be in compliance with the law.  For that guidance, we look to La. R.S. 14:19 and La. R.S. 14:20.  It is important to note that La. R.S. 14:19 and La. R.S. 14:20 are not specifically directed toward law enforcement, but are the general rule that governs everyone within the boundaries of the State of Louisiana.

La. R.S. 14:19 reads as follows:

A. (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) 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.
(b)(i) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person using the force or violence reasonably believes that the use of force or violence is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(ii) The provisions of this Paragraph shall not apply when the person using the force or violence is engaged, at the time of the use of force or violence in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
(2) The provisions of Paragraph (1) of this Section shall not apply where the force or violence results in a homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

Paragraph A(2) tells us that this does not apply if the force used results in a homicide.  For that we have to look to La. R.S. 14:20, which reads as follows:

A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.
(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the dwelling, place of business, or motor vehicle when the conflict began, if both of the following occur:
(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Again, I will point out that this is the standard that applies to all within the political boundaries of the State of Louisiana.

Specifically for law enforcement, we look to the U.S. Supreme Court’s holding in the case of Graham v. Connor, 490 U.S. 386.  Prior to Graham, the court used the test developed in Johnson v. Glick, 481 F.2d 1028, to determine if a use of force by law enforcement was constitutionally excessive.  The test in Johnson required that there be proof that the force was applied maliciously and sadistically to cause harm based on the 8th Amendment to the U.S. Constitution.

In Graham, the Court decided that the standard should be based on the 4th Amendment to the U.S. Constitution instead of the 8th Amendment.

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. 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.

Graham v. Connor, 490 U.S. 386, 387, 109 S. Ct. 1865, 1867, 104 L. Ed. 2d 443 (U.S. 1989).

Folks such as the authors of the N.Y. Times article referenced above, suggest that the law should embody the DOJ’s necessity standard which states:

 

The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.

I think this is an interesting argument, particularly in light of the fact not one officer involved shooting involving an FBI agent has ever been deemed excessive.  See this N.Y. Times article.

The Graham standard has served us well and it should not be disturbed.  If the Graham standard is turned into a necessity standard, I would recommend that everyone in law enforcement get out — unless you work for the FBI.

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