Keys to Winning with
Use of Force
Randy Means
Thomas and Means, L.L.P.
[email protected]
(Cell) 702-591-3701
Main Office in Charlotte, NC (704)895-5694
Understanding the Battlefield
Truth and Consequences:
What’s At Stake
Professional Values and Ethics
Safety and Survival
Effectiveness
Public Image
Job and Career
Civil Liability
Criminal Prosecution
Legal Standards
Federal Constitutional
Requirements
State Rules (Statutes)
Agency Policy
Federal Constitutional
Standards
Graham v. Connor
“Reasonableness”
Objective Standard (Fourth
Amendment)
Note: Different for Confinement Facilities
Graham v. Connor, 490 U.S.
386 (1989)
Reasonableness analysis is from the
perspective “…of a reasonable officer on the
scene, rather than with the 20-20 vision of
hindsight…” allowing for the fact that
“…officers are often forced to make splitsecond judgments - in circumstances that
are tense, uncertain, and rapidly evolving…”
No Requirement of Least
Intrusive Alternative
Least Force Not Required
Only Requirement: Reasonableness
“Continuum” vs. (Circular) Options
Models
Illustrative Example
Tennessee v. Garner, 471
U.S. 1 (1985)
Common Law “Fleeing Felon Rule” Found
Unconstitutional
Deadly Force Prohibited Against Unharmed,
Non-Threatening Fleeing Suspects
Exception(?): Commission of Felony
Dangerous to Life
* Imposes Requirement of “Some Warning If
Feasible”
Federal Constitutional
Lawsuits
Section 1983 (Right to Sue)
(1871)
Section 1988 (Attorney’s Fees)
(1976)
Types of “Damages”
Nominal
Compensatory
Punitive
Suits Against Individuals
“Acting Under Color of Law”
No “Good Faith” Defense
“Qualified Immunity” Potentially
Available
Punitive Damages a Possibility
“Qualifying” for Immunity
Could a reasonable (well-trained) officer have
thought this action was OK (lawful)?
“This action was OK” EQUALS “This amount of
force to be reasonably necessary”
Must not violate clearly established/settled
principle of Federal Constitutional Law
What is “clearly established/settled law”?
Specific rather than general principles
Qualified Immunity in a
Force Case
Saucier v. Katz, 533 U.S. 194
(2001)
Two Bites at the “Reasonableness”
Apple?
A “Reasonable” Belief in
“Unreasonable” Force
Suits Against Entity(ies)
Can’t Sue the State (Michigan v. Will)
(Sovereign Immunity)
Can Sue Municipalities (Cities, Counties,
Their Subdivisions)
But Only If a “Policy or Custom” is a “Moving
Force”
No Good Faith Defense, No Qualified
Immunity
No Punitive Damages
Monell v. (NY City) Dept. of
Social Services, 436 U.S. 658
(1978)
What is a “Policy”?
What is a “Custom”?
What is a “Moving Force”?
Keys to
Understanding
Force
Incidents
Key #1
Managing Emotion
and
Interpersonal
Communication
Key #1
The Three for One Bonus Offer
Maximize Effectiveness
Reduce Risk of Complaint and
Lawsuit
Improve Odds of Safety and
Survival
Key #2
Assuring the Legal
Validity of the
“Core” Transaction:
Managing the Use of
Police Power
Key #2
Assuring the Legal Validity of
the “Core” Transaction
Pedestrian Stops
Searches of Persons
Vehicle Stops and Searches
Arrests
Entries Into Private Premises
Key #3
Maintaining
Proportionality:
Managing Force
Escalations
Key #3
Controlling Levels and Amounts of
Force
The Federal Constitutional Standard: “Reasonable
Necessity”
State Law Rules [see Statute(s)]
Agency Rules [see Policy(ies)]
Tools and Equipment
Training and Skill Maintenance and Development
Physical Ability and Conditioning
Fear and Anger Management
Interpersonal Communication Skills
Key #4
Avoiding Case
Poisonings:
Managing the
Peripherals
Key #4
Controlling the Spin
Pre-Incident Issues: Prejudice, Bias,
etc.
During Incident Behaviors: Verbal,
Witnesses, etc
Post-Incident Issues: Reports,
Witness and Officer Statements, etc.
Long Term Effects of Untruthfulness
Other Considerations
Pros and Cons of
“Continuums”
Benefits of Circular
“Options” Models
Avoiding CounterPurposeful Terminology
Questions, Answers
& Discussion