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. During his year active-duty career, he served as a prosecutor, defense counsel, military judge, and staff judge advocate.

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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. During his year active-duty career, he served as a prosecutor, defense counsel, military judge, and staff judge advocate.

Traffic stops, investigative detentions, and arrests are all Fourth Amendment seizures. A seizure must be objectively reasonable — meaning reasonable in its inception, the degree of force used, and its duration. The Supreme Court stated in Graham v. Tim: No. 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. 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. 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. 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.

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. 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:. 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. 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. 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. His speech was slurred. His breath smelled sweet, like alcohol. 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 what if Connor had learned the next day that Mr. Graham had previously assaulted a police officer? Again, what were the facts reasonably known to the officer at the time? 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. 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. For example, what is the size, height, and weight of the suspect compared to the officer?

Is the suspect pounds with cauliflower ears, or is he an year-old man who weighs pounds? 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. 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. Paint the picture for me. 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.



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