Legal Officers Section
International Association of Chiefs of Police
November 12, 2000
by Elliot Spector, Esq.
Connecticut Criminal Law Foundation
Center for Police and Security Training
Past Chair, IACP-LOS
West Hartford, CT
Tel: (860) 233-8251
POST-INCIDENT OFFICER CONDUCT
1. Officer Safety is Priority One.
No deadly physical force encounter is over until the threat has been fully eliminated.
2. Render Medical Aid.
First aid and medical attention, to the extent that the same can be administered once the scene is safe, are the next priority of the involved officer.
3. Safeguard the Scene.
After ensuring that a threat of physical harm no longer exists, the involved officer's responsibility is to secure the scene.
4. Identify Witnesses.
Witnesses are transient in nature. Immediately after an event, witnesses should be identified quickly, through positive identification if possible, and thereafter assigned to a dedicated officer for interview.
5. Preserve All Evidence.
Occurring simultaneously with the identification of witnesses, the involved officer should take an active role (until relieved by sufficient support officers) in evidence preservation. Of particular concern are the preservation of weapons, shell casings, and other evidence of an immediate physical threat, and the location from which that threat was presented to the involved officer.
6. Provide Necessary On-Scene Statements.
An involved police officer should be prepared to provide an on-scene verbal statement to responding personnel. Such an on-scene statement should be verbal only and should be limited to that information necessary to conduct a proper at-scene investigation. Statements of this nature will typically be of the character of "this is where I chased him," "this is where he turned on me," "this is where I fired," and so forth.
7. Expect the Seizure of Your Firearm and Other Related Evidence.
Law enforcement crime scene procedures call for the retention of, as evidence, an involved officer's firearm and magazines. Any other relevant issued or personal item, even articles of clothing, may be seized by the investigating officials.
8. Officers should be Removed to an Environment or Setting Where
They are Comfortable.
Removal from the scene keeps the officer away from curious reporters, bystanders and even other officers.
9. Contact Family and or Arrange for Personnel Support.
Arrange or ensure that appropriate support personnel, from within or without the department, are asked to aid officer.
10. Request the Assistance of Counsel.
Access to qualified legal representation should be made available to the involved officer.
11. Assistance of Union Representative.
In Weingarten the Court recognized that an officer who is a member of a recognized collective bargaining unit is entitled to union representation at an interview with the employer that the officer reasonably expects to result in discipline. A union representative should never be requested in lieu of an attorney. Rather, the union representative should be considered merely as an aid to the employee, positioned to ensure that the employee understands, utilizes and implements those rights available to them.
12. Assistance of a Mental Health Professional.
Purely a matter of personal choice as to timing, an "employee assistance representative" will ultimately be tasked to the involved officer in any case.
13. Garrity Rights.
As with the civilian citizen, police officers suspected of misconduct cannot be "compelled in any criminal case to be a witness against themselves."
Baez v. City of New York, N.Y., Bronx County, Sup. Ct., No. 18822-95
Plaintiffs claimed Lavoti: (1) improperly confronted the Baez family in violation of the common practice and regulations of the police department; (2) wrongfully detained and arrested Baez, and (3) used excessive force by performing a chokehold in violation of police guidelines.
A suit against the city alleged failure to (1) use reasonable care in the hiring, training, and supervising of police officers and (2) remove Lavoti from his position as a police officer.
Plaintiffs claimed that 14 prior excessive force complaints had been filed against Lavoti including several alleging application of a chokehold, one that led to an assault conviction. They further alleged that the department was aware of Lavoti's violent propensities because (1) some of the reported incidents had occurred in front of supervisors, (2) Lavoti had been placed in a police program designed to oversee excessively confrontational officers, and (3) his precinct commander had recommended his removal from field work. The city claimed municipal immunity and Lavoti and another officer denied he had used the chokehold. Other officers claimed they had not witnessed the events.
The trial court granted plaintiffs' summary judgment against the municipality finding that Lavoti's actions were "part and parcel of a police enterprise". The parties settled for 3 million dollars.
Plaintiffs' counsel was allowed to cross-examine the police union attorney, despite attorney-client privilege arguments. The attorney was cautioned with regard to a 48-hour rule in a union contract giving officers targeted in official investigations of police misconduct 48-hour insulation from questioning by city or police officials to seek representation. Witnesses were permitted 4 hours.
Boyd v. Baeppler, 215 F3d 594 (6th Cir. 2000)
Officers responded to a call that a citizen heard a shot and saw a black male pointing a gun at 3 people. Responding officers saw the plaintiff, who fit the general description, approaching them with a gun. One, armed with a shotgun, and the other with a handgun, identified themselves as police officers and ordered plaintiff to stop.
The officer with the shotgun testified that as Boyd was running, he looked back pointing his gun at the officer's head causing the officer to fire one shotgun blast propelling Boyd to the ground.
The officer with the handgun testified that he fired 3 or 4 rounds. After his partner's shotgun blast felled Boyd, he observed Boyd lifting his torso, turning and pointing his weapon at the officer. He then fired 7 more rounds until Boyd dropped his weapon.
· The sole issue was whether the officers acted reasonably in using deadly force as self-defense.
· Issues as to whether Boyd was running away in an attempt to escape, whether he fired his weapon or whether he committed a crime were wholly immaterial to whether he presented a threat to the officers.
· Although all the eyewitness evidence was consistent on events prior to the shooting, the officers were the only ones available to testify about the shooting. Their statements taken during the investigation and deposition testimony and affidavits, all told the same consistent story.
· Speculation of plaintiff's expert, a doctor, who concluded that Boyd might not have been able to turn and point his weapon given his spinal injury, amounted to nothing more than speculation and therefore did not create a genuine issue of material fact.
United States v. Bradley, 196 F.3d. 763 (7th Cir. 1999)
The defendant, a 72-year old man, had spent more than 40 years of his life as a law enforcement officer in small towns in Illinois, had a good reputation as a police officer and strong ties to the community. Bradley was a passenger in a patrol car driven by Officer Ashkar on the midnight shift. They were operating an unmarked black Chevrolet Caprice with an emergency light on the inside front dashboard. Upon observing Roosevelt Marshall roll through a stop sign, they activated their red emergency lights. Not recognizing their vehicle as a police car, the 60-year old Marshall who was on his way home from work, did not stop.
As Ashkar drove within 12 feet of Marshall's station wagon, Bradley fired one shot that he claimed to be a warning shot. When Marshall continued to drive, Bradley fired a second shot with his .357 hollow point which traveled through the rear tailgate back seat and imbedded in the back of Marshall's seat, causing him to feel a blow to his back. He pulled over believing the people with the emergency lights were shooting at him.
When Marshall emerged from his vehicle Bradley recognized him as a boyhood friend and after a brief discussion let him leave without issuing him a citation. Despite department policy requiring an immediate report of discharge of a firearm Bradley left the station without filing such a report. Ashkar did report the shooting both orally and in writing. Marshall reported the incident to the FBI. Following an investigation, Bradley was indicted and convicted under 18 U.S.C. Section 242.
Bradley appealed claiming there was no seizure when he shot Marshall's car because Marshall had not yet stopped the car when Bradley shot at it. The court rejected his argument quoting California v. Hodari D., 499 US 621 (1991)
…for a fleeing suspect to be seized for fourth amendment purposes, (1) the arresting officer must apply physical force or display a show of authority, and (2) physical force or show of authority must cause the fleeing subject to stop.
Marshall stated that upon feeling the shot he stopped because he believed that the people in the car were shooting at him. Therefore, the shooting caused Marshall to stop his car, and was properly determined to be a fourth amendment violation.
Bradley also claimed he was not acting willfully and that he believed Marshall may have been reaching for a gun. Ashkar contradicted this statement and testified that he observed no furtive gestures from the driver of the station wagon. The court not only found sufficient evidence to support the verdict, but also granted the government's appeal of the trial judge's reduction of the statutory sentence and remanded the case for re-sentencing.
Jackson v. Sauls, 206 F.3d 1156 (10th Cir. 2000)
The plaintiffs, four young black males, were observed driving in a blue Pontiac 6000. The defendants, three African American males, were working undercover in plainclothes as part of the field investigation team driving in a gray Pontiac 6000. The defendants had served about one month in plainclothes and did not have any specialized training. Prior to this shooting incident, some other team members had expressed concern that the defendants were too aggressive and had a history of complaints against them.
When the defendants pulled alongside plaintiff's vehicle, they claim they observed some nervous or furtive actions. Plaintiff Jackson turned into the parking lot of a motorcycle shop and all three plaintiffs entered the shop, which was occupied by the owner and four mechanics. The defendants, who had been in front of the plaintiffs, turned around on suspicion that the blue Pontiac had been stolen based on their observations of alleged nervousness, the abrupt turn the plaintiffs made into the parking lot, and their knowledge that the Pontiac 6000 is an easy car to steal. They checked the empty car finding no evidence that it was stolen but called in the license plate. One minute after arrival, a nearby crash was loud enough to alert persons inside the motorcycle shop, who came out to see what happened. Defendants, observing individuals who had been in the blue Pontiac, approached with their guns drawn, yelling and cursing at everyone to get back in the shop and lie down. Everyone in the shop believed that this was an armed robbery, as the defendants allegedly never showed their badges or identified themselves as police officers. One of the mechanics, Stearns, who carried a licensed concealed weapon, drew his 9-millimeter handgun and fired three rounds at Officer Sauls striking him twice in the abdomen. Sauls returned fire, hitting Plaintiff, Wimbish, in the leg as he lay on the ground unarmed. As plaintiff Wimbish attempted to crawl from the shop, he saw Officer Pickney and dropped to the ground, face down. Pickney fired twice from approximately l3 feet and two bullets hit the sidewalk, ricocheting into Jackson, killing him. It is alleged that the officers never identified themselves until after the shooting.
Plaintiff Wimbish and his friend Dean, who were both unarmed, were arrested for aggravated assault. Another African American male, who arrived after the shooting, was taken into custody and questioned, however, Stearns, the only Caucasian and the only civilian who fired shots, was not arrested.
The Office Professional Standards (OPS) recommended charges against Officers Sauls and Pickney for work rule violations including no reasonable suspicion for a Terry stop. The initial findings also reported that Sauls and Pickney had been untruthful in their statements to OPS and the Homicide Division. The final recommendation was that only Pickney should be charged with a work rule violation in "use of firearms". Pickney was suspended for five days but no criminal charges were filed against him as a result of an investigation conducted by the District Attorney's Office, the FBI and the Georgia Bureau of Investigation.
The stop occurred when the officers pointed their guns and ordered plaintiffs, with profanity, to lie on the floor. Under plaintiffs' versions, there was no arguable, reasonable suspicion. They claim they obeyed all traffic laws, acted normally, entered the motorcycle shop and after hearing a loud crash, came out to look at the accident. Defendants' version was that they thought the occupants recognized them as police officers, looked nervous and refused to make eye contact. After pulling ahead of them, they saw in their rearview mirror, plaintiff's blue Pontiac appear to take evasive action by turning abruptly into a side street. To them the blue Pontiac had the look of a stolen car rapidly abandoned because the door was ajar with an item of clothing hanging outside. Defendants further aver that their police badges were visible and that when Sauls identified himself as a police officer, Dean fled and that only then did Sauls, fearing for his safety, unholster his weapon and order plaintiffs to the ground. Defendants' version of events, if credited by a jury, established arguable reasonable suspicion for the stop.
Damages and Causation
Assuming that the stop was illegal, would the shooting victims be entitled to damages on the use of force claim? Under Section 1983 defendants are, as in common law tort suits, responsible for the natural and foreseeable consequences of their actions. The plaintiff must show that, except for the constitutional tort, such injuries and damages would not have occurred, and that the injuries were the reasonably foreseeable consequences of the tortuous acts. Plaintiffs contend that defendants' illegal stop set off and caused a chain reaction leading to plaintiffs' injuries. The court agreed that a jury issue remained, cautioning that police officers cannot foresee all conduct occurring after a stop or arrest even if illegal. For example, when a uniformed officer, or an undercover officer identifies himself as a policeman, and draws his gun even during an illegal stop or arrest, civilians do not normally begin shooting. In such a situation it would not be reasonably foreseeable that a shooting would occur. However, under plaintiffs' version, a jury could find that it was reasonably foreseeable given the defendants' dress, actions and failure to identify themselves, that the occupants of the shop may have believed this was an armed robbery and therefore, the discharge of firearms would be foreseeable.
Excessive Force During Stop Period
The court concluded that if it is determined that the stop was illegal then any excessive use of force claim would be subsumed in the illegal stop or arrest claim because if a stop or arrest were illegal, there would be no basis for any threat or use of force.
If the stop was legal the excessive use of force must be dealt with separately. The right to make an investigatory stop carries with it the right to use some degree of physical coercion or threat. An officer's drawing of a weapon and ordering a person to stop and lie on the ground does not necessarily constitute excessive force during an investigatory stop. The court ruled that under the defendants' version of events a reasonable police officer would not have known that drawing his gun and ordering plaintiffs to lie on the ground violated plaintiffs' clearly established rights.
The court found that the officer's actions were objectively reasonable, as their firing of weapons was in response to a clearly life threatening situation. The fact that he hit Wimbish, lying on the floor, and not Sterns, did not negate the reasonableness of his actions. Officer Pickney, on the other hand, fired two shots toward the unarmed Jackson who was lying prostrate only 13 feet away. Pickney explained that he shot toward Jackson when he saw the muzzle of the gun in the doorway, and that he was laying cover for his wounded partner. There was no evidence that Jackson had any object that could have looked like a gun nor were any such objects in the doorway. However, the court did find that Officer Pickney was entitled to qualified immunity in using deadly force to cover his wounded partner. Officer Fields was also entitled to qualified immunity on the claim that he failed to intervene, because he was in fact not in a position to intervene.
Schaefer v. Goch, 153 F.3d 793 (7th Cir. 1998)
At 9:15 p.m., officers received a call stating that a man named Nieslowski had threatened patrons of a local bar with a shotgun. He was acting in an irrational manner and threatened to shoot any officer he saw. The SRT team, and officers from three departments surrounded his home. Nieslowski was known to be a fighter, with a military background who had been a suspect in a murder investigation. At about 1:00 a.m., the officers attempted a silent entry resulting in Nieslowski firing at them with a shotgun, striking the ballistic shield of the lead officer. The officers retreated. Sometime after the aborted entry, Kathy Nieslowski, walked out onto the front porch. Officers repeatedly shouted at her to get down. After she dropped to all fours, John Nieslowski stepped out carrying a long gun and as he took hold of Kathy's hair or shoulder, pulled her back toward the door, as she struggled. Sergeant Goch, who was the only one who initially reported seeing Nieslowski's gun swing toward the officers, fired two shots from his submachine gun, striking Kathy in the back of the head killing her.
The court found that Kathy was not seized within the meaning of the Fourth Amendment, merely because she followed the officer's instructions in dropping to the ground. The fact that she was temporarily immobile did not mean that her freedom of movement was terminated. The officers were in no position to stop her from re-entering the house if she chose to. She also was not seized by way of the shootings since she was not the object of the officers' use of force. Therefore, the applicable standard is the Fourteenth Amendment substantive due process test of whether the government conduct at issue, "shocks the conscience". In this case, the officers, "were faced with a dangerous, fluid situation, in which they were forced to make decisions 'in haste, under pressure, and… without the luxury of a second chance.' When government officers face the sort of unforeseen and rapidly changing circumstances that demand unreflective decisions with potentially grave consequences on every side, even precipitate recklessness fails to inch close enough to harmful purposes to spark the shock that implicates [the concerns of substantive due process.]'"
Even firing a gun when an innocent person is only inches from the intended target will not be found to shock the conscience, even if the target never swung his weapon in the direction of the officers. "Given the high pressure, life-and-death nature of the stand-off, the officers were not required to wait until John actually pointed his shotgun at them."
The officers' stories are not fully consistent as to whether John's gun was pointing to the west the entire time of swung at some point to the south, toward Sergeant Gouch.2
Thomas v. Roach, 165 F.3d 137 (2d Cir. 1999)
A woman identified the plaintiff who was standing across the street from her house as someone who had threatened to burn the house down and was crazy. Officer Bailey called out to and approached Thomas who walked into the rear of the residential building. A number of officers responded as backup, some going to the front and others to the rear of the building. A third floor tenant told the officers that a crazy man had just broken her window, ran through her apartment and exited in the front door. She stated that he was carrying a knife. When Officer Roach reached the second floor landing, he encountered Thomas in the stairwell. According to the officers, Thomas had a knife in one hand and a rock in the other and attempted to strike Roach. Several officers fired shots at Thomas who recoiled. When Thomas lunched at Roach, Roach fired three shots. A total of twelve bullets were fired, resulting in multiple gunshot wounds rendering Thomas a paraplegic.
Thomas contended that the officers shot him from the second floor landing while he was on the intermediate landing between the second and the first floors. He claimed that neither the rock nor knife came in contact with any of the officers, and that he could not have made a downward stabbing motion when he was located below Officer Roach. Shell casings were found on the second floor and bloodstains on the intermediate landing. The Appellate Court overturned the grant of summary judgment finding material issues of fact as to whether Thomas was armed at the time of the shooting, whether he attempted to harm Officer Roach before the first volley of shots, whether it was feasible for the officers to warn him before the shooting and whether he lunged at Roach after the first volley of shots.
Thomas also brought claims under Section 1985(3). To state a cause of action under this Section a plaintiff must allege "(1) a conspiracy; (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property or deprivation of a right or privilege of a citizen of the United States". The court affirmed the summary judgment in favor of the officers on this claim. The district noted that the officers gave different accounts of the shooting, and would seem more conspiratorial if all the defendants' stories matched up in the details. The plaintiff also failed to allege with any particularity overt acts related to the promotion of the claimed conspiracy. He also failed to show any discriminatory animus. Although he was black, he did not demonstrate that the officers selected their course of action because of his race.
© 2000, by Elliot Spector. May be reproduced for law enforcement instructional purposes, but not for commercial profit.