Rules of Engagement

None of us were there, none of us were in their shoes.

However, in retrospect, they must realize that the command to mute body cams is not going to play well in the court of opinion.

Fourth, in general an LEO may use lethal force under circumstance in which a reasonable and prudent person would conclude that lethal force is necessary to prevent imminent death or grave bodily injury to an innocent.

Click to expand...

No, not a "reasonable person" but a "reasonable officer" would believe that...

Graham v Connor:

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

Click to expand...

and "innocence" has nothing to do with defending a life.

Using the Graham standard, the officer's force should be applied in the basic manner that an "objectively reasonable" officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer at the scene.

In the Graham decision, the key point was made that use of force by officers needs to take into account "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."

The court stated that "(t)he '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" and further that "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."

wojownik said:

Using the Graham standard, the officer's force should be applied in the basic manner that an "objectively reasonable" officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer at the scene.

In the Graham decision, the key point was made that use of force by officers needs to take into account "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."

The court stated that "(t)he '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" and further that "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."

Click to expand...

The entire second paragraph applies to anyone in a self defense confrontation.

Split-second judgements, circumstances that are tense, uncertain, and rapidly evolving.

Frank Ettin said:

Cite legal authority. In fact you're wrong, especially with regard to the question of the severity of the crime and the question of resisting arrest or attempting to evade arrest by flight.

Click to expand...

I was speaking of the second paragraph only and clearly said so. So within the context of my statement the issues over arrest would not apply.

Anyone, however, in a self defense scenario, are de facto under the same pressures in the second paragraph.

What we were taught when I was a LEO was that we needed to be able to articulate an immediate threat to ourselves or someone else. The lawyers make it more complicated, but it doesn't need to be more complicated than that. When you're in that situation you don't have time to think about much more than that.

Frank Ettin said:

I was referring to the second paragraph.

The first paragraph begins, "Using the Graham standard...."

The second paragraph reads (emphasis added):

​

Click to expand...

Pardon me and correction, I was referring to the third paragraph; split second decisions etc.

Frank Ettin said:

Cite legal authority. In fact you're wrong, especially with regard to the question of the severity of the crime and the question of resisting arrest or attempting to evade arrest by flight.

Click to expand...

Verbatim from Graham v Connor (1989), Rehnquist delivering the opinion of the Court.

"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. Id., at 8, quoting United States v. Place, 462 U.S. 696, 703 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S., at 22 -27. Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8 -9 (the question is "whether the totality of the circumstances justifies a particular sort of .... seizure."

In fact you're wrong, especially with regard to the question of the severity of the crime and the question of resisting arrest or attempting to evade arrest by flight.

Click to expand...

How is he wrong? explain.

Meanwhile a bill has been introduced in the California legislature to change the standard from "reasonable" to "necessary", see http://dailycaller.com/2018/04/03/california-bill-restrict-police-firearms/

"articulate an immediate threat"
With all due respect to TomJ, I don't know what that means. There must be more. If I say that I that I feared for my safety because a four-year-old kid on a tricycle was about to hit me, I have articulated an immediate threat.

back when I was in uniform we had the deadly force triangle and all three sides had to be articulated , In today's environment it is easy to understand why we have such a police shortage , I was talking with an Officer the other day he was telling me with many reaching retirement they just do not have good recruits filling those positions, he said that there is a lack of interest among the younger generations to become a
LEO , with many of our city's becoming lawless and the courts and media protect the criminals it has a negative impact on becoming a LEO.
sorry for getting off topic

cjwils said:

"articulate an immediate threat"
With all due respect to TomJ, I don't know what that means. There must be more. If I say that I that I feared for my safety because a four-year-old kid on a tricycle was about to hit me, I have articulated an immediate threat.

Click to expand...

Totality of circumstances is going to be the key here. In your example the totality of the circumstances does not lead the "objectively reasonable officer" the court refers to, to feel that using deadly force would be appropriate. My favorite example when teaching is: "Is being attacked with a metal pipe or rod swung at your head a deadly force situation?" Everyone agrees that it is. "Is it deadly force if it's a 65 year old man swinging a gold club?" I start to get a few hands go down "What if it's a 4 year old swinging an unlit sparkler?" Every once in a while I'll still have a cadet with their hand up (they get remediated).

An additional area to to look at is Tennessee v Garner, which is what established police deadly force as more properly a 4th amendment issue (basically saying that killing someone amounted to a seizure).

-Jenrick

Destructo6 said:

How is he wrong? explain.

Click to expand...

That was my fault. I referred to the second paragraph in the post I quoted concerning Tennessee vs Garner. Using a phone with a small screen at work on a break, in a hurry, I mistakenly posted that I was commenting on the second paragraph. It was in fact the third paragraph I was referring to.

Jenrick said:

Totality of circumstances is going to be the key here. In your example the totality of the circumstances does not lead the "objectively reasonable officer" the court refers to, to feel that using deadly force would be appropriate. My favorite example when teaching is: "Is being attacked with a metal pipe or rod swung at your head a deadly force situation?" Everyone agrees that it is. "Is it deadly force if it's a 65 year old man swinging a gold club?" I start to get a few hands go down "What if it's a 4 year old swinging an unlit sparkler?" Every once in a while I'll still have a cadet with their hand up (they get remediated).

An additional area to to look at is Tennessee v Garner, which is what established police deadly force as more properly a 4th amendment issue (basically saying that killing someone amounted to a seizure).

-Jenrick

Click to expand...

To categorize it as a 4th issue is erroneous in my opinion. It is better taken in the general sense, which I am sure the founders took for granted under the generally referred to "right to life, liberty and the pursuit of happiness".

A seizure does not imply a right to destroy, which death or serious bodily harm amounts to in the the context of a human person.

Aside from an act of self defense, the right to take a life rests only with the sovereign State after due process.

cjwils said:

"articulate an immediate threat"
With all due respect to TomJ, I don't know what that means. There must be more. If I say that I that I feared for my safety because a four-year-old kid on a tricycle was about to hit me, I have articulated an immediate threat.

Click to expand...

In my day (and currently in the private sector) it was an identifiable weapon. Not "I saw something shiny and thought it was a gun [or knife, screwdriver etc]". Or "he was reaching for something", or "he had his hands inside his vehicle and failed to obey my commands". It meant a tangible weapon. That was considered an immediate [tangible] threat.

Frank Ettin said:

First, there's nothing in the Constitution about a right to "life, liberty, and the pursuit of happiness." That's from the Declaration of Independence. In the Constitution, the right to life, liberty, and property is protected by the Fifth and Fourteenth Amendments.

But your opinion notwithstanding, these police use of force cases (generally arising as civil actions under 42 USC 1983) are Fourth Amendment cases. See, for example, Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) in which the Supreme Court states (471 U. S. 1, at 7, emphasis added):

​

And in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), The Court notes (490 U. S. 386, at 394):

​

Click to expand...

I stated that it was likely taken for granted. It was of course mentioned in the Declaration of Independence, and I am sure it would have been commonly embraced. It is enumerated in the 5th Amendment in connection with due process.

In regards to seizure, my point was that seizure in context is not a justification to destroy - kill.

RPZ said:

In regards to seizure, my point was that seizure in context is not a justification to destroy - kill.

Click to expand...

You are potentially misunderstanding what the court is looking at regarding seizures. Prior to Tennese v Garner, police deadly force could fall under a bunch of different areas, though mainly suites fell into the purview of the 14th amendment (deprivation of life, liberty, or property without due process). This uses the "shocked the conscious" standard, which is quite a bit a different.

Tennessee v Garner explicitly defined the application of deadly force to a person to be a seizure. Thus moving the legal question over to the 4th amendment, "objective reasonableness" standard. Regardless of your personal feelings on the matter, the courts view the application of deadly force as a seizure and evaluate it as such. Graham v Connor provided some significant clarification on HOW the SC wanted the lower courts to evaluate a LE seizure, and also applied the 4th amendment to pretty much all police use of force.

-Jenrick

Frank Ettin said:

Sigh!

First, the Fifth and Fourteenth Amendments say nothing about the pursuit of happiness -- in connection with due process or anything else.

Second, your point is irrelevant. In fact, these police use of force cases, including the use of lethal force cases, are, as a matter of law, Fourth Amendment case. That is what the courts say. What matters is what the courts say, not what you say. And BTW in Garner the person against whom force was used was, in fact, killed; but the Supreme Court still analyzed the case under Fourth Amendment principles.

Click to expand...

I do not understand why a reasonable, rational and logical thinker would construe that "happiness" was not what my subject point was, but I learn something new every day.

As far as the courts ruling that the resulting death was a 4th and not a 5th Amendment, well, they could rule that critical thinkers we're not human - and some people would accept it, support it, and defend it.