Deadly force by police: Attorney explains how the law determines when it's warranted

Devon M. Jacob | York Daily Record

Show Caption Hide Caption Witness said cop shot handcuffed man outside Spring Grove bank Pennsylvania State Police are investigating an officer-involved shooting on Wednesday evening.

I have received numerous inquiries regarding the recent police-involved shooting at Santander Bank, located in Spring Grove, Pa., which involved an officer employed by the Southwestern Regional Police Department. As I have not been asked to represent the shooting victim, and I have no firsthand knowledge of any of the material facts, I will refrain from opining on the ultimate question in the case. Instead, I will explain the law and leave the ultimate determination for the jury.

Before I begin, it must be noted that the firing of a bullet into a person is the use of deadly force, regardless of whether or not the person ultimately lives or dies.

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Ideally, there should be four independent concurrent investigations occurring, with differing scopes of inquiry:

(1) Employment: An internal investigation conducted by the Southern Regional Police Department to determine whether or not the shooting complied with department policy and training.

(2) Accreditation: If the police department is accredited, the accrediting agency should be conducting an investigation to determine whether the continuation of accreditation is appropriate and/or whether corrective action is required to maintain accreditation.

(3) Pennsylvania State Criminal: A criminal investigation to determine if the shooting violated Pennsylvania state criminal laws.

(4) Federal Criminal: A criminal investigation to determine whether the shooting violated federal criminal laws.

Separately, as a citizen of the United States, the shooting victim enjoys civil rights that are protected by the U.S. Constitution. As I am a civil rights lawyer, I will limit my commentary to the civil rights inquiry. In this regard, the Fourth Amendment to the U.S. Constitution prohibits unreasonable seizures. A government’s use of excessive force is considered an unreasonable seizure.

The civil law recognizes that at times, officers are forced to make split-second decisions about the amount of force that is necessary in a particular situation, and that these judgments are sometimes based upon mistakes of fact.

Importantly, however, the law does not ask whether the mistake was an honest mistake; rather, the law asks whether the mistake was a reasonable mistake.

Likewise, just as an evil motive will not make a Fourth Amendment violation out of an objectively reasonable use of force nor will good intentions make an objectively unreasonable use of force constitutional.

Where an officer’s use of force is based on an alleged mistake of fact, the law asks whether an objectively reasonable officer would have, or should have, accurately perceived the fact.

Thus, standing in the shoes of the “objectively reasonable officer,” the law asks whether the severity of the force applied was balanced by the need for such force, considering the totality of the circumstances.

This inquiry necessarily includes consideration of the following factors: (1) the severity of the crime, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.

Framing the legal question that confronts us now, the question is whether the officer’s conduct in mistakenly applying deadly force to the suspect was objectively unreasonable under the totality of the circumstances. Stated another way, if the officer knew, or should have known, that the weapon that he drew was his handgun as opposed to his Taser, and thus had been aware that he was about to use deadly force on an unarmed handcuffed mentally ill man who was sitting in the backseat of a police vehicle, and whose only present “crime” was his refusal to comply with an order to place his legs and feet inside of the vehicle for transport, then the application of deadly force would be unreasonable under the Fourth Amendment.

To guide the determination of whether the officer should have known that he was holding the wrong weapon, the court will likely consider the following factors: (1) the nature of the training that the officer received to prevent incidents like this from happening; (2) whether the officer acted in accordance with the training; (3) whether following the training would have alerted the officer that he was holding a handgun instead of a Taser; (4) whether the suspect’s conduct heightened the officer’s sense of danger; and (5) whether the suspect’s conduct caused the officer to act with undue haste and inconsistently with that training.

Devon M. Jacob is an attorney based in Mechanicsburg.