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Use of Force Criminal Code, Case Law, Reporting Considerations and Policy Review.

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1 Use of Force Criminal Code, Case Law, Reporting Considerations and Policy Review

2 720 ILCS 5/7-5 Peace Officer’s Use of Force in Making an Arrest A peace 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.

3 720 ILCS 5/7-5 (cont.) 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 such other person, or when he reasonably believes both that: (1) Such force is necessary to prevent the arrest from being defeated by resistance or escape; and (2) The person to be arrested has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm 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.

4 720 ILCS 5/7-8 Force Likely to Cause Death or Great Bodily Harm (a) Force which is likely to cause death or great bodily harm, within the meaning of Sections 7 ‑ 5 and 7 ‑ 6 includes: (1) The firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and (2) The firing of a firearm at a vehicle in which the person to be arrested is riding. (b) A peace officer's discharge of a firearm using ammunition designed to disable or control an individual without creating the likelihood of death or great bodily harm shall not be considered force likely to cause death or great bodily harm within the meaning of Sections 7 ‑ 5 and 7 ‑ 6.

5 720 ILCS 5/7-9 Use of Force to Prevent Escape (a) A peace officer or other person who has an arrested person in his custody is justified in the use of such force to prevent the escape of the arrested person from custody as he would be justified in using if he were arresting such person. (b) A guard or other peace officer is justified in the use of force, including force likely to cause death or great bodily harm, which he reasonably believes to be necessary to prevent the escape from a penal institution of a person whom the officer reasonably believes to be lawfully detained in such institution under sentence for an offense or awaiting trial or commitment for an offense.

6 Use of Force by Police Reasonable (objectively) Necessary (at the time) Not Excessive Force Window

7 Civil Rights Act US 1983 “Every person who, under the color of any statute, ordinance, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and the laws, shall be liable to the party injured in any action at law, suit in equity, or other proper redress.”

8 U.S. Supreme Court Evaluation of Reasonableness: Must consider the seriousness of the crime. The immediacy of the threat. Whether the suspect is actively resisting arrest or attempting to flee.

9 Excessive Force Test Was the level of force used: Too great? Applied too long?

10 Excessive Force A use of force that is not authorized by law or goes beyond the amount of force necessary and reasonable to detain, restrain or arrest.

11 Legitimate Force The objectively reasonable and necessary force to: - effect the arrest of an offender. - protect the officer from harm. - protect citizens from harm.

12 Illegitimate Force Any force used: - to perpetrate a criminal offense. - that exceeds the amount of reasonable and necessary force required to apprehend a suspect (arrest) or to protect the citizen or officer.

13 Use of Force Considerations Officer Subject Factors - Age - Fitness - Skill Level - Multiple Officers - Multiple Subjects Special Circumstance - Proximity to Weapon - Special Knowledge - Injury or Exhaustion - Ground Position - Disability - Imminent Danger Force is applied to maintain or restore order never maliciously or sadistically.

14 4 th Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

15 8 th Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

16 14 th Amendment All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

17 Tennessee v. Garner Officers received a radio message that a certain home was being burglarized. They went to the home and saw a boy or young man, Garner, running from the home. An officer told Garner to stop, but Garner kept fleeing. When it became apparent that Garner was going to escape, the officer shot and killed Garner.

18 Tennessee v. Garner The United States Supreme Court ruled that the officer’s shooting Garner was a seizure under the 4th Amendment and that the seizure was unreasonable because Garner did not pose a threat to anyone at the time he was shot.

19 Tennessee v. Garner However: When an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, the Court stated, it is not unreasonable to prevent his escape 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.” Note that the Court states that a warning should be given before firing “where feasible.” The standard established by this decision does not require that a warning must necessarily be given in each instance before the use of deadly force is constitutionally permissible.

20 Graham v. Connor Graham was suffering from an insulin problem and was driven to a convenience store by a friend to purchase orange juice. Graham ran into the store, but when he realized that the line was too long he ran out and got into the car. Officers, watching the store, saw Graham run into the convenience store and quickly run out, so the officers thought that he had just committed a robbery. The officers then stopped the car Graham was in. Graham ran around the car and sat on the curb. The officers thought Graham was on drugs, so an officer banged his face on the hood of the car (presumably to clear his head). An officer then checked the convenience store and learned that Graham did not rob the store.

21 Graham v. Connor The United States Supreme Court ruled that the suit must be analyzed under the 4 th Amendment. That is, was the seizure “unreasonable?” (Obviously, even if the officers had reasonable suspicion to stop, they did not have the power during the detention to bash his face on the hood of the car.)

22 Graham v. Connor GRAHAM V CONNOR is probably the most important case in the history of excessive / unreasonable force law. GRAHAM suggested three factors that courts and juries should consider in their determination of whether the officer used excessive or unreasonable force. Other courts have said that these factors are not the only factors (e.g. warning the suspect) and need not be recited verbatim as jury instructions, but they are important. Those factors are: 1. The severity of the crime. 2. Whether the person against whom the force was used presented an immediate threat. 3. Whether the person against whom the force was used was resisting arrest or trying to escape. The question is “whether the totality of the circumstances justifie[s] a particular sort of … seizure.” OBJECTIVELY REASONABLE

23 Plakas v. Drinski Plakas was drunk and drove his car into a ditch. An officer found Plakas walking along the road. Plakas admitted to driving the car in the ditch. The officer arrested Plakas but he escaped. Plakas fled to his fiancé’s home which was nearby. Officers followed Plakas to the home. Plakas grabbed a fireplace poker and hit one of the officers on his wrist. Plakas then took off out the door. The officers surrounded him. At one point Plakas said to one officer that one of them was going to die. After a 15- minute interval where the officers tried to calm Plakas and get him to drop the poker, Plakas began to approach an officer with the poker raised. The officer shot and killed Plakas.

24 Plakas v. Drinski Plakas’ executor sued the officers arguing that the officers had the duty to use all less deadly force or alternative methods (including pepper spray) to resolve the situation before using deadly force. The 7th Circuit Court of Appeals ruled that force used was reasonable under the circumstances and that the officers were not required here to use their pepper spray. Therefore summary judgment was appropriate.

25 Pena v. Leombruni A man shoplifted and acted crazy in a store. An officer arrived and could see the man was mentally unstable. When the man confronted the officer, the officer felt compelled to pepper spray the man and his dog. The man then picked up a chunk of concrete. The officer back pedaled and told the man to put the concrete down. When the man was within5-10 feet, the officer shot the man and killed him.

26 Pena v. Leombruni The man’s administrator sued the officer for excessive force arguing that the officer should have been trained to handle mentally ill or unstable people without shooting them. The 7th Circuit Court of Appeals ruled that the officer may respond with deadly force if the officer reasonably believes that he is in imminent danger of great bodily injury or death. Therefore summary judgment was appropriate.

27 Deorle v. Rutherford Police Officer Greg Rutherford fired a "less lethal" lead-filled "beanbag round" into the face of Richard Leo Deorle, an emotionally disturbed resident of Butte County, California, who was walking at a "steady gait" in his direction. He did so although Deorle was unarmed, had not attacked or even touched anyone, had generally obeyed the instructions given him by various police officers, and had not committed any serious offense. Rutherford did not warn Deorle that he would be shot if he physically crossed an undisclosed line or order him to halt. Rutherford simply fired at Deorle when he arrived at a spot Rutherford had predetermined. The projectile Rutherford fired removed Deorle' s eye and left lead shot implanted in his skull.

28 Deorle v. Rutherford The absence of a warning or an order to halt is also a factor that influences our decision. Shooting a person who is making a disturbance because he walks in the direction of an officer at a steady gait with a can or bottle in his hand is clearly not objectively reasonable. Certainly it is not objectively reasonable to do so when the officer neither orders the individual to stop nor to drop the can or bottle, and does not even warn him that he will be fired upon if he fails to halt. Appropriate warnings comport with actual police practice. Our cases demonstrate that officers provide warnings, where feasible, even when the force used is less than deadly. We do not hold, however, that warnings are required whenever less than deadly force is employed. Rather, we simply determine that such warnings should be given, when feasible, if the use of force may result in serious injury, and that the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test. In the present case, the desirability and feasibility of a warning are obvious. Deorle might never have passed the unannounced, pre-determined spot selected by Rutherford had Rutherford given him a warning or a command to halt. There was ample time to give that order or warning and no reason whatsoever not to do so.

29 Forrett v. Richardson Forrett bound and shot two victims during a burglary. He then stole firearms and a truck. A victim called the police and described the crimes and the truck. The officers found the truck abandoned. A few minutes later they saw a man matching Forrett’s description. An officer confronted Forrett, and Forrett fled on foot. Forrett eluded the officers for about an hour as he ran through the neighborhood. Officers told residents in the neighborhood to stay indoors as they thought Forrett would take hostages if he could. Officers saw him again and ordered him to surrender. Forrett ran, so the officers shot and wounded him.

30 Forrett v. Richardson Forrett sued the officers, the chief and the city. Forrett argued that he was not armed and therefore did not pose a threat to the officers or others. A jury awarded compensatory and punitive damages against the defendants even though Forrett admitted that there was probable cause to arrest for the offenses. The 9th Circuit Court of Appeals ruled that the officers had probable cause to believe that Forrett would use violent means to escape if he had to including the seizing of a hostage if he were not apprehended. The court also ruled that it was reasonable to use deadly force in such circumstances. Therefore the officers did not violate Forrett’s constitutional rights.

31 Johnson V. County of Los Angeles Johnson and Edwards robbed a bank. Officers chased the car at high speeds. Edwards, the driver, lost control and ran into a concrete divider. Edwards tried to get out, but the deputies caught him. Johnson was sort of hiding / trapped in the back seat. Officers pulled him out. Johnson testified that he became paraplegic when the officers used excessive force pulling him over the front seat and out of the car as apparently the front seat had been pushed against the back seat trapping Johnson’s legs. Johnson said that when the deputies pulled him out, he felt as if he “was being pulled apart.” Also, after Johnson was pulled out and placed on the ground, an officer put a knee in Johnson’s back.

32 Johnson V. County of Los Angeles The officers testified that they were dealing with an armed robber after a one-hour dangerous chase at speeds up to 100 mph, and Johnson’s legs were accidentally caught when he was pulled out. The officers felt they had to get Johnson out of the car quickly so they could search and handcuff him. The district / trial court refused to grant the officers’ motion for summary judgment. The 9th Circuit Court of Appeals ruled that every criteria laid out by the Supreme Court in GRAHAM favored the officers – serious crime, escape, resistance, and reasonable fear of a weapon. Therefore the court reversed and ruled that summary judgment must be awarded the officers.

33 Pre-Seizure Tactics and Conduct Plaintiffs suing officers often argue that if the officer(s) had executed better pre-seizure tactics or strategy there would have been no need for the amount of force exerted against the citizen / suspect. The general rule here appears to be that unless the officer creates the provocation in the first place, that simple tactical mistakes prior to the seizure will not rise to the level of constitutional violations for which an officer can be sued.

34 The Use of Force Decision Legally Correct Civilly Correct Morally Correct

35 Use of Force Force must be a measured response intended to: - Gain Compliance or - Gain Control or - Incapacitate – Stop – Neutralize the Threat

36 Report Writing What was the crime committed? What was the level of resistance? - describe What was the level of force used? - technique Why was force necessary? - prevent escape - protect another - self protection Were announcements made? - under arrest - stop or …

37 Report Writing Document witnesses. - obtain statements Be conscious of how you articulate If it was a contributing factor and it is not included in the narrative, it did not happen. Everything is discoverable - training records - memorandums - e-mails

38 Policy Review USE OF FORCE: It is the responsibility of every FIAT SWAT officer to be familiar with the requirements of the laws regarding the use of force and to act within the scope of those laws. FIAT SWAT officers will use only an objectively reasonable level of force to: Accomplish a lawful objective. Effect an arrest. Control a person. Effectively bring an incident under control, while protecting the life of the officer or another. SERIOUS PHYSICAL INJURY / GREAT BODILY HARM: A bodily injury that creates a substantial risk of death; causes serious permanent disfigurement; or results in long term loss or impairment of the function of a bodily member or organ. REASONABLE BELIEF: The facts and circumstances known to the officer, which are such as to cause an ordinary and prudent person, with the knowledge, training and experience of a Police Officer, to act or think in a similar manner under similar circumstances.

39 Policy Review UNNECESSARY FORCE: Force that is uncalled for and serves no legitimate purpose, or force that goes beyond the amount of force that is objectively reasonable under the circumstances. NON-DEADLY FORCE: A use of force other than that which is considered deadly force. The use of non-deadly force is justified when it is reasonably believed to be necessary to: Effect an arrest. Defend against an imminent use of unlawful force. Prevent escape. HIGH LEVEL USE OF FORCE: The use of a firearm as deadly force or any use of force that results in death, great bodily harm or the extended hospitalization of any person, regardless of whether the person harmed was the intended recipient of the force.

40 Policy Review DEADLY FORCE: Any use of force that is likely to cause death or great bodily harm, or which creates some specified degree of risk that a reasonable and prudent person would consider likely to cause death or serious physical injury. Examples of those acts as specified in the Illinois Compiled Statutes, 720 ILCS 5/7-8, are as follows: The firing of a firearm in the direction of a person to be arrested, even though no intent exists to kill or inflict great bodily harm. The firing at a vehicle in which the person to be arrested is riding. The use of deadly force is only authorized when it is reasonably believed that the level of force is necessary to prevent: Imminent death or serious physical harm to either themselves or another person. The arrest of a suspect from being defeated by resistance or escape; and the suspect is attempting to escape by the use of a deadly weapon and has indicated he/she will endanger human life or inflict great bodily harm unless arrested without delay.

41 Policy Review DEADLY FORCE: The officer must give some warning of the use of deadly force if feasible. Deadly force will not be used when less force would be sufficient to stop the threat or effect the arrest. The discharge of a firearm for the purpose of a warning shot is prohibited. SWAT Officers will not discharge a firearm from a moving vehicle or at a moving vehicle or its’ occupants unless: The suspect is using deadly force and it is a necessary measure of self-defense or defense of another. The totality of the circumstances, as reasonably known to the officer, justifies the use of force, and are so compelling that the officer reasonably believes that the risk of injury to the officer or another person outweighs the risk of not firing from or at a moving vehicle.

42 Policy Review DEADLY FORCE CONSIDERATIONS: A mere verbal threat of death or great bodily harm to a hostage or another person, absent any overt action, will not justify the use of deadly force. Prior to the use of deadly force, a suspect must take some overt action indicating intent to use force likely to cause death or great bodily harm. Such actions include but are not limited to: discharging a firearm in a threatening or dangerous manner, the battery of a victim or hostage that may result in death or great bodily harm, use of explosives or other devices likely to cause death or great bodily harm, any action indicating an imminent threat of death or great bodily harm.

43 Policy Review ORDERING USE OF DEADLY FORCE: The Incident Commander has the authority to order the use of deadly force and to cancel such order. That order may only be given when the use of deadly force is reasonable, necessary and justified. Whenever possible the decision to order the use of deadly force should be reviewed with the State’s Attorney’s Office and the Chief of Police from that jurisdiction. Prior to ordering the use of deadly force the Incident Commander shall consider: The risk to victims, citizens and law enforcement personnel. All intelligence information available. Assessments made by the Crisis Negotiation Team and SWAT Team Commander.

44 Policy Review ORDERING USE OF DEADLY FORCE: The SWAT Team Commander has the authority to order the use of deadly force when directed to do so by the Incident commander. The SWAT Team Commander may order the use of deadly force without authorization from the Incident Commander when the circumstances require immediate action and the use of that force is reasonable, necessary and justified. The SWAT Team Commander may also cancel or refuse to use deadly force when the use of that force is not reasonable, necessary or justified. Any officer ordered to use deadly force by the Incident Commander or SWAT Team Commander (acting or actual) shall rely upon, and to the extent possible comply with, that order. MEDICAL AID: After any application of force, the suspect will be examined and if necessary treated by Tactical EMS. In the event it is necessary to transport a suspect to an area medical facility: Tactical EMS will maintain control of the patient until relieved by the same level of care. The requesting agency will have custody of the suspect and as such will be responsible for all security considerations.

45 Policy Review REPORTING USE OF FORCE INCIDENTS: All use of force incidents shall be reported to the SWAT Team Commander. The SWAT Team Commander will in turn notify the Incident Commander, the FIAT Coordinator and the Chief of Police of the officer involved. In addition to any reports required by the officer’s parent agency the officer will be directed to complete a FIAT SWAT Supplemental report to the incident. In all cases other than high-level use of force incidents, it will be the responsibility of the FIAT SWAT Team Commander to interview the officer or officers involved, the suspect and all witnesses. The FIAT SWAT Commander will then prepare a written recommendation as to whether the level of force used was reasonable, necessary and justified. That recommendation as well as all reports created or obtained by the FIAT SWAT Team will be forwarded to the FIAT Coordinator and the officer’s Chief of Police. The officer’s parent agency may choose to accept the recommendation of the SWAT Team Commander or use the information gathered to supplement their own investigation.

46 Policy Review REPORTING USE OF FORCE INCIDENTS: The FIAT Coordinator will be responsible for coordinating the investigation of all high-level use of force incidents with the agency of jurisdiction. The FIAT SWAT Team Commander will be available to assist and interact with all entities assigned to investigate the incident. Violations of the FIAT SWAT Use of Force Policy will result in immediate removal from the team.

47 Litigation Avoidance Training – more than just being there…participating. Criminal Code and Case Law Policy and Procedure Expert Assistance Documentation


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