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When The Police Go Too Far

The whole country is rightfully concerned about the death of George Floyd while he was being arrested by the police. The video of Mr. Floyd begging for his life while being choked by kneeling Minneapolis police officer Derek Chauvin is absolutely sickening. We at the Law Offices of Jason E. Taylor want to add our voices to say what happened to Mr. Floyd is wrong, and that reforms are badly needed in the way that the police use force. The sad part is there could be a George Floyd every day somewhere in America.

Law enforcement has its share of problems like all other professions. The popularity of shows like the original “Cops!” and now “Live PD” has given the public a better understanding of the stresses and strains of policing the general public on a daily basis. The relative low pay combined with the high stress makes it tough to attract and keep qualified candidates. Budget restrictions make it difficult for some departments to do the necessary training to educate their officers better. We do not expect our law enforcement officers to be perfect, but we, as a society, do expect the officers to stay within bounds.

Unfortunately, there are some bad officers who abuse the public’s trust. These bad officers go too far and go outside of the limitations, exceeding the required level of force. In the past, it was hard to get relief for the victims of police abuse. Bad officers rarely feared being punished by their own departments. There is typically more than one officer at any given scene, and sometimes officers would coordinate their stories to cover up any abuse. It would be the word of a criminal (since the victim is usually being arrested for committing a crime) against two or more officers. Even good officers might be reluctant to speak out against their corrupt colleagues. It is what is referred to as “the blue wall of silence.” The general public held (and still do mostly) officers in high regard so the officers would be generally believed.

The widespread use of body cameras—occasioned after Walter Scott was shot to death by North Charleston PD officer Michael Slager—has made it easier for a post-incident review to determine precisely what happened. The unblinking eye of video is impartial and has helped change the dynamic in reviewing these cases. Also, the prevalence of smartphones with cameras has helped provide additional footage of incidents. It was footage of that nature that proved critical in the Scott case when Officer Slager misrepresented the encounter. It was also cell phone footage that revealed the abuse of Mr. Floyd.

Presumably, Officer Chauvin and the other officers at the scene were wearing body cameras, which will provide more context for the encounter. Context in use of force decisions and cases is extremely important. The public has not seen the body camera footage from Officer Chauvin or the other officers at the scene. This footage—if it exists—will show us what was happening before Officer Chauvin put his knee on Mr. Floyd’s neck.

An officer is allowed to use force to make an arrest, but the force use must be proportional to the amount of resistance encountered by the officer. This is called the “Force Continuum,” which helps us understand what level of force is appropriate in particular circumstances.

The five levels of threat (the threat being from the suspect) are:

1. Intimidating demeanor

2. Passive resistance

3. Active resistance

4. Assault

5. Aggravated Assault.

The five corresponding responses to these threats by the officer are:

1. Command Presence

2. Verbal commands

3. Controlling Force

4. Impact force

5. Deadly force.

For example, an officer may use his gun against a suspect attempting an aggravated assault (using a weapon like a gun or knife) that is trying to harm the officer. An officer would not be allowed to use deadly force against a suspect that was actively resisting an officer. An officer would be allowed to use “controlling force,” which means use their hands on the suspect, but it is less than fighting or striking the suspect.

Sometimes the problem is with the use of force policy itself. These are some of the common criticisms:

1. Failing to require officers to de-escalate situations, where possible, by communicating with subjects, maintaining distance, and otherwise eliminating the need to use force. Some bad officers have been found to do the opposite in order to provoke a physical encounter.

2. Allowing officers to choke or strangle civilians, in many cases where less-lethal force could be used instead, resulting in the unnecessary death or serious injury of civilians. This appears to be the exact situation with Mr. Floyd. Mr. Floyd was subdued, making pinning onto the ground unnecessary.

3. Failing to require officers to intervene and stop excessive force used by other officers and report these incidents immediately to a supervisor. There were other officers present with Officer Chauvin, who did nothing to save Mr. Floyd.

4. Failing to restrict officers from shooting at moving vehicles, which is regarded as a particularly dangerous and ineffective tactic.

5. Failing to develop a Force Continuum that limits the types of force and/or weapons that can be used to respond to specific types of resistance.

6. Failing to require officers to exhaust all other reasonable means before resorting to deadly force.

7. Failing to require officers to give a verbal warning, when possible, before shooting at a civilian.

8. Failing to require officers to report each time they use force or threaten to use force against civilians.

There are a couple of things to keep in mind as we watch the judicial process play out for Officer Chauvin. There will be a state criminal process for Officer Chauvin and the officers involved. There will also probably be a federal criminal process as well.

Officers who violate the civil rights of a suspect can face prosecution and possible federal prison time.

Finally, there may be a civil wrongful death suit brought by Mr. Floyd’s family against the Minneapolis Police Department. There is a federal cause of action pursuant to 42 USC 1983 for violations of civil rights. However, there are is a major hurdle in a federal 1983 action called qualified immunity. Qualified immunity protects police officers, their departments, and the departments’ insurance companies from liability unless the officer’s actions violated “clearly established” federal law or constitutional rights. Courts have increasingly interpreted this doctrine so broadly that it makes suing a bad police officer extremely difficult. Congress has begun the process to abolish or curtail qualified immunity, but that legislation faces an uphill battle.

There are also state law causes of action, which may provide the Floyd family monetary relief. Most states have enacted laws to shield themselves from liability for knowingly wrongful acts by their employees. These legal shields are called “the Tort Claims Act” which also make it tough to use state courts to go after bad officers. There are exceptions that knowledgeable counsel can help a victim navigate.

There are things that you can do to help improve the situation of police use of force. Lobby your state and federal representatives for expanded rights of victims of police brutality to receive financial compensation. Qualified immunity is a judicially created doctrine that could be abolished by Congress. The elimination of qualified immunity would force police departments that harbor bad officers to make changes. You should contact your member of the U.S. House and Senators, urging the passage of a repeal of qualified immunity. Another change would be to make the officer discipline process more transparent and to use non-department persons to act as oversight. The continued expansion of availability and the use of body cameras will also expand accountability. You should also contact your state legislators to make sure these legal defenses found in the Tort Claims Act have exceptions so that these statutes are not used to protect officers that go too far.

Finally, to quote abolitionist and civil rights icon Fredrick Douglas: “Agitate! Agitate! Agitate!” Continue to make your voice and opinions heard in public and online. Peaceful protest will bring about the result and change our country desperately needs.

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