This concept prevents the courts from reviewing an officer's use of force while analyzing facts learned AFTER the use of force was applied.
The "No 20/20 Hindsight" Rule.
This rule could be applied both in a positive and negative sense.
Positive: After the an OIS, the LEO finds that the object pointed towards him was a toy gun (doesn't matter).
Negative: After the incident, the LEO learns that the suspect had a history of assaults on LEO's (not relevant as that history was NOT known at the time of the use of force).
List 5 "other" Graham factors.
1. Suspects/Officer ratio
2. Size, age, and condition of the suspect and officer
3. Duration of the action
4. Known alcohol/drug use/impairment of suspect
5. Known criminal history of the suspect
6. Known psychiatric history of the suspect
7. Known violent history of the suspect
8. Time (does suspect pose an immediate threat, if not, then does the officer have time to consider other, less intrusive options)
Seizure
A seizure includes: an arrest, investigatory detention, traffic stop, use of baton, OC, or other intermediate weapons.
A Seizure also includes "deadly force" which is the highest level of intrusion on someone's liberty.
Suspect behaviors such as yelling, clinching fists, taking a fighting stance are examples of this.
Pre-assault indicators.
These factors may cause unnecessary hesitation when an officer uses force. List four.
1. Unintended consequences of well intended training (21-foot rule; center mass; two rounds the holster; verbal warnings; ask, tell, make)
2. Psychological Inhibitions
3. Personal Beliefs
4. Legal Misunderstandings (minimal force, exhaust less means of force, duty to retreat)
5. Agency Use of Force Policies
6. Learned Behaviors
7. Societal Expectations
8. Belief in Endless Lawsuits
9. Media Persecution
10. Physiological Changes
11. Perceptual Changes from state of arousal
12. Cognitive/Behavioral Changes
In Graham v. Connor, the courts recognized that LEO's must make split-second decisions in circumstances that are tense, uncertain, and what?
Rapidly evolving
In Graham v. Connor, the Court held , "...that all claims that LEOs have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under this amendment and standard (two part answer).
Fourth Amendment and its objective reasonableness standard.
This makes force reasonable.
Facts
The standard found in the Fourth Amendment does not require the least intrusive level of force, but rather it requires this.
Reasonableness
LEOs must understand that uses of force should be offensive acts. This is always fast that reaction.
Action
This is the MOST important Graham factor.
Immediacy of the threat.
A Fourth Amendment seizure must be objectively reasonable in:
a) its inception,
b) the degree of force used, and
c) this element.
Duration.
Once the threat is gone, the continued use of force may be excessive.
In Graham v. Connor, the Court stated that all uses of force should be evaluated for reasonableness this person's perspective.
A reasonable officer on scene.
For deadly force to be justified, an officer is not required to be 100% certain that the suspect is going to cause death or serious bodily injury, but rather the officer must have this.
Probable Cause to believe the suspects actions will result in death or serious bodily injury to the LEO or others.
The mind can be described as having two parts. This part is the "boss".
The subconscious mind.
Name the 4 Graham Factors.
1. Severity of the crime
2. Immediacy of the threat
3. Whether the suspect the suspect was actively resisting arrest
4. Whether the suspect was attempting to evade arrest by flight
Give 3 examples of factors NOT required before LEO uses deadly force.
1) LEO fears for his/her life
2) LEO is responding to violent felony
3) LEO must exhaust lesser force options first
4) LEO has a duty to retreat
5) LEO must always give a warning
Good fact articulation.
In Tennessee v. Garner, the Court stated that a warning should be given before deadly force is applied if feasible. List 2 factors when a warning would not be feasible.
1. Time
2. Distance
3. Available cover/concealment
4. Known history of violence
5. Whether such a warning may cause the offender to act before the LEO could respond.
1) The conscious mind is slow in processing stimuli.
2) Limited in the amount of information it can focus on.
This case provided an example of when deadly force is reasonable.
Tennessee vs. Garner
Deadly force is reasonable when:
a) Probable Cause
b) suspect committed a crime involving the infliction/threat of serious bodily harm
c) prevent escape
d) warning if feasible
This case establishes a relationship between Graham v. Connor and Tennessee v. Garner. What is the case and what is the relationship? (2-part answer)
Scott v. Harris
The Court held that Graham v. Connor established the test/standard for judging all force - the Fourth Amendment and its Objective Reasonableness standard.
The Court also held that Tennessee v. Garner provides an example as to when force highly likely to have deadly effects is reasonable.
Although Scott v. Harris did not involve a weapon, per se, Harris' flight by means of a speeding vehicle posed a significant threat of serious bodily harm to others and created the strong governmental interest that made what Scott (LEO) did fall within the range of reasonableness.
In Graham v. Connor, the Court stated that whether force is reasonable requires careful balancing of the nature of the intrusion on the suspect's liberty (what the officer did) and this counterbalance.
Countervailing government interest at stake (why did the officer do it?).
If deadly force is reasonable, then these statements are not relevant/of no consequence. List two.
1. The implement used to apply the force is of no consequence.
2. The degree of injury sustained by the assailant is of no consequence.
3. The relative positioning of the assailant to the officer is of no consequence (i.e. shot in the back).
4. The assailant is responsible for his/her injuries, not the officer.
Note: LEOs must recognize that their agency policy may be more restrictive in deadly force situations than required by law.
These factors may influence an officer's arousal level. List two.
1) Intent behind the threat
2) Perceived risk from the threat
3) Time available to respond
4) Confidence in their skill set
5) Experience level with the threat
6) Fatigue