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Dolan: ‘Reasonable’ force an increasingly relevant topic

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This week’s question comes from Marvin in the East Bay, who asks:

Q: “I was recently tased by the police when I had not done anything wrong. They were going to arrest some other dude, and when I said I had nothing to do with anything, I got tased. I didn’t threaten anybody and I had nothing to do with the crime, which they accused the other guy of doing. I was never even accused of being involved in the crime before I was tased. They originally claimed that I was resisting arrest and interfering with law enforcement, but the charges were dropped. What are my rights?”

A: Marvin, what has happened to you seems to be reflective of what is happening in our society today.

Under the Fourth Amendment, police may only use force that is objectively reasonable under the circumstances. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene. The courts have held that, “Nevertheless, the reasonableness inquiry 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.”

In short, an officer’s use of force must be objectively reasonable based on his contemporaneous knowledge of the facts.

The essence of the reasonableness analysis says the force that was applied must be balanced against the need for that force: It is the
need for force that is at the heart of analysis. Factors to consider include 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 or she is actively resisting arrest or attempting to evade arrest by flight.

“The most important single element of the three specified factors is whether the suspect poses an immediate threat to the safety of the officers or others.” However, a simple statement by an officer that he or she fears for his or her safety or the safety of others is not enough; there must be objective factors to justify such a concern.

The Federal Ninth Circuit Court of Appeals (which covers California) has repeatedly concluded, “where there is no need for force, any force used is constitutionally unreasonable.”

There is no per se rule that pointing guns at people, or handcuffing them, constitutes an arrest. But use of guns, tasers and handcuffs must be justified by the circumstances. The courts look at the “totality of the circumstances” whether the use of force is reasonable.

As so aptly stated by the Ninth Circuit in the case of Washington v. Lambert, “While we must not compel police officers to take unnecessary risks, total security is possible, if
at all, only in a society that puts a much lesser premium on freedom than does ours.

“Therefore, in determining whether a stop was lawful or unlawful, we must consider the risk to the police officers inherent in the situation, but we must also consider the liberty interests all Americans cherish — specifically the freedom from unreasonable searches and seizures guaranteed by the Fourth Amendment to our Constitution. “In this nation, all people have a right to be free from the terrifying and humiliating experience of being pulled from their cars at gunpoint, handcuffed, or made to lie face down on the pavement when insufficient reason for such intrusive police conduct exists. The police may not employ such tactics every time they have an ‘articulable basis’ for thinking that someone may be a suspect in a crime. The infringement on personal liberty resulting from so intrusive a type of investigatory stop is simply too great.”

The way that such an action is prosecuted is through use the law contained in the United States Code, 42 U.S.C. 1983, which states, “Every person who, under color of any statute, ordinance, regulation, 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 laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding.

I suggest that you consult with a trial lawyer skilled in 1983 actions to review the facts of your case.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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