Police use of force: Excessive or reasonable?

There appears to be an epidemic in the use of force by the police which should concern everybody, especially people who are not white, because they are more likely to be the victims. On August 9 in Ferguson, Missouri a white police officer (Darren Wilson) fired at least six shots at an unarmed African American teenager (Michael Brown) and killed him. According to Time magazine, Brown and his friend Dorian Johnson were “walking in the street when Wilson rudely ordered them onto the sidewalk. When the pair didn’t immediately comply, Wilson put his car in reverse, pulled up next to Brown and grabbed him. A struggle ensued; a shot was fired; the pair took off running... with Wilson in pursuit, firing more shots. Other witnesses sympathetic to Brown alleged that he was shot in the back or while on his knees in a posture of surrender.” Time, Sept. 1, 2014. See Philippine News editorial, August 22-28, 2014.

On July 17 in New York several police officers confronted an unarmed African American man, Eric Garner, and then a white officer placed a chokehold on the victim, pulled him to the ground, where he died after crying repeatedly “I can’t breathe!”  https://www.google.com/search?q=Eric+Garner+chokehold&client=firefox&hs=rK3&rls=com.yahoo:en-US:official&channel=sb&tbm=isch&tbo=u&source=univ&sa=X&ei=oNz8U7SVJ4LJigLMvYBo&ved=0CCkQsAQ&biw=1231&bih=667.  On July 1 in Los Angeles, an unarmed African American woman, Marlene Pinnock, was walking on the side of a freeway when suddenly a white CHP officer grabbed her, threw her to the ground, straddled her while she was on her back, and repeatedly punched her on the head. http://www.latimes.com/local/lanow/la-me-ln-chp-officer-beating-potentially-serious-charges-20140820-story.html

According to the U.S. Civil Rights Commission: “Police officers possess awesome powers... Their general responsibility to preserve peace and enforce the law carries with it the power to arrest and to use force—even deadly force.” U.S. Civil Rights Commission, Who is Guarding the Guardians (1981).

Does that mean that the police can willy-nilly use force every time they encounter a civilian? Absolutely not. The U.S. Supreme Court held that all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard. The Fourth Amendment guarantees citizens the right “to be secure in their persons... against unreasonable seizures”. “Determining whether the force used to effect a particular seizure is “reasonable" under the Fourth Amendment requires a careful balancing of “the nature and quality of the intrusion on the individual's Fourth Amendment interests” against the countervailing governmental interests at stake. Graham v. Connor, 490 U.S. 386 (1989).

Factors in judging reasonableness

Because "[t]he test of reasonableness is not capable of precise definition or mechanical application, its proper application requires careful attention to the facts and circumstances of each particular case, including (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. Graham v. Connor.

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. 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. The ‘reasonableness’ inquiry in an excessive force case is an objective one: the question 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.”

“One of the obvious problems created by a reasonableness standard is determining the appropriate level of reasonableness.”  How Reasonable is the Reasonable Man? Police and Excessive Force, Alpert and Smith.

Like beauty, reasonableness is in the eye of the beholder.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)