(Author: Colin Wood; Reprinted with permission of the Kansas Sheriffs Association)
“History is a guide to navigation in perilous times. History is who we are and why we are the way we are.”
Historian David McCullough
A Short History: Police Use of Force
The evolution of the police use of force is interesting. There are no doubt a few officers still working who remember when the lawful use of deadly force included shooting not just armed and dangerous felons who had committed serious crimes, but the shooting of all fleeing felons.
The Common Law is law that is derived from prior judicial decisions rather than from statutes enacted by legislative bodies. Our early courts looked to English Common Law until the new state and federal governments could get caught up with our new nation’s legal needs. Legislatures and Congress have since codified many Common Law rules.
There were two general Common Law rules concerning use of force brought to our shores by the early colonists: 1) a prohibition against the use of deadly force to stop a fleeing misdemeanant; and, 2) a privilege to use deadly force to stop a fleeing felon. Over the following 200 years, different states and law enforcement agencies enacted laws and policies on use of force, some retaining those historic Common Law rules, and some using more restrictive language. By 1960, less than half of the states allowed deadly force in all fleeing felon cases. Some restricted deadly force to certain felonies, or to violent felonies, or only when the felon was otherwise dangerous.
Until the 1980s, Kansas followed the original Common Law rule as contained in early versions of K.S.A. 21-3215: “[a]law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another person, or when he reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested has committed or attempted to commit a felony or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.”
Tennessee law was similar in allowing deadly force to stop the escape of any fleeing felon providing that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.”
One evening in October 1974, Memphis police officers Elton Hymon and Leslie Wright were dispatched to a burglary-in-progress call. Upon arriving and contacting the reporting-neighbor, Officer Hymon went to the rear of the house. Almost immediately out of the back door ran Edward Garner who had to then quickly stop at a six-foot fence. Using a flashlight, Officer Hymon was able to determine that Garner was apparently unarmed, was about 16 or 17 years old, and was about 5’5” or 5’7” tall. Officer Hymon hollered “police, halt.” When Garner started to climb the fence Officer Hymon decided that if Garner was able to go over the fence that Garner would probably escape arrest. Hymon shot and killed Garner. Ten dollars and a purse taken from the house were found on Garner’s body.
Tennessee state law and department policy supported the shooting, but Garner’s father sued in federal court alleging violation of Edward’s civil rights. After a three-day bench trial, the district judge held that Officer Hymon had employed the “only reasonable and practicable means of preventing Garner’s escape. Garner had ‘recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.” On appeal, the Sixth Circuit Federal Court of Appeals affirmed the district court.
Eleven years after the shooting, the United States Supreme Court voted 6-3 in Tennessee v. Garner to reverse. The majority reminded the lower courts and law enforcement that “whenever an officer restrains the freedom of a person to walk away, he has seized that person,” that such seizures are Fourth Amendment events, and seizures under the Fourth Amendment must be “reasonable.” Holding that the use of deadly force to prevent the escape of all felony suspects no matter the circumstances is constitutionally unreasonable. “It is not better that all felony suspects die than that they escape. Where the suspect poses no harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect.”
However, the Big Court also held that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent the escape [of a felon] by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”
So today, in Kansas, state law authorizes the use of deadly force to effect arrests in the following scenarios, “ . . . [h]owever, such officer is justified in using deadly force only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving death or great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.
That said, then how do courts determine “reasonableness” in use of force cases? Ironically, while Garner was pending before the Big Court, the event that would lead to that “reasonableness” answer was occurring. On November 12, 1984, in Charlotte, North Carolina, diabetic Dethorne Graham believed that he was having an insulin reaction. Going into a convenience store for orange juice, he decided that he could not wait in the long line to pay, so he quickly left the store. Officer M.S. Connor noticed the activity and after Graham got into a friend’s car, Officer Connor stopped the car apparently suspicious of Graham’s quick entry and exit from a business. Graham continued his strange behavior by running around the car and passing out on the curb. Officer Connor thought Graham was intoxicated. More officers arrived and Graham was handcuffed. Graham’s friend tried to convince the officers of the insulin problem but to no avail. After an hour, and finding from the convenience store staff that no crime had occurred, Graham was released. Because Graham believed that he had suffered physical injuries during the event, he sued Officer Connor and others for using excessive force during the encounter.
The federal trial court analyzed the case under the then-existing four-factor test for excessive force claims: 1) the need for application of force; 2) the relationship between that need and the amount of force that was used; 3) the extent of the injury inflicted; and, 4) whether the force was applied in a good faith effort to maintain and restore discipline or [was] maliciously and sadistically [applied] for the very purpose of causing harm. The judge found that the amount of force used against Graham was “appropriate under the circumstances . . . there was no discernable injury inflicted . . . and the force used was not applied maliciously or sadistically . . . but in a good faith effort to maintain or restore order in the face of a potentially explosive situation.” Graham appealed but lost before the federal circuit court of appeals when it decided that the test used by the trial court was the correct one.
Later, the Big Court in a 9-0 decision rejected “this notion [of the lower courts] that all excessive force claims brought under §1983 are governed by a single generic standard [the four-part test]. “Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures of the person.”
“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. 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 . . . An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”
So, the modern test for police use of force claims was held to be: “the reasonableness of a particular use of force [lethal and non-lethal] must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
For further research and understanding:Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989); K.S.A. 21-5227.