Excessive Use of Force by Law Enforcement
During the past year numerous examples of excessive force by police have been captured on video for everyone to see. The public has seen violence, shootings, death and the unconstrained use of force by police, including the following:
- On July 17, 2014, in Staten Island, New York, 44 year old African American Eric Garner, father of six and grandfather of three, died from a police choke hold after being detained for allegedly selling unlicensed cigarettes. His last words, gasped over and over 11 times, were “I can’t breathe, I can’t breathe.”
- On August 9, 2014, in Ferguson, Missouri, Michael Brown, an unarmed 18 year old African American, was shot and killed by police after allegedly stealing a few packs of cigarillos from a convenience store. The evidence suggests 12 bullets were fired by the officer and the last one killed Brown.
- On April 4, 2015, in North Charleston, South Carolina, a 50 year old unarmed African American, Walter Scott, while fleeing from police for a taillight infraction, was shot in the back eight times by a police officer.
- On April 12, 2015, Freddie Gray, a 25 year old African American, was arrested by police in Baltimore, for allegedly possessing an illegal weapon, but which appears to be a small, legal pocket knife. A week later Gray died from a severed spine – supposedly from a “rough ride” – while being transported in a police van.
The country – and the world – watched in shock and horror as videos of alleged excessive police force, violence and minority profiling were shown over and over on national and local TV. In response to the alleged police violence and use of excessive force, protests and demonstrations erupted in New York, Ferguson, North Charleston, Baltimore and in many other cities throughout the country. Federal, state and local investigations are still underway.
While most of the police officers were not charged with crimes, in Baltimore, six officers were charged with various offenses, including second degree assault, which has a ten year maximum penalty. One officer is charged with second degree depraved heart murder, amongst other charges, for which there is a maximum 30 year sentence. Depraved heart murder is defined as the killing of another human being with extreme disregard or indifference for human life. Not unexpectedly, many cheered when these charges were announced by the Baltimore District Attorney.
How Does Florida Define Excessive Use of Force?
In Florida, there is not a particular statute that defines “excessive use of force” per se. However,Chapter 776 of the Florida Statutes, Justifiable Use of Force, consists of 12 statutes that detail the use of force. Within the chapter, several of the statutes apply specifically to law enforcements’ use of force. Deadly use of force is addressed, but again, it is not specifically defined.
- 776.012 Use or threatened use of force in defense of person.
- 776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.
- 776.031 Use or threatened use of force in defense of property.
- 776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.
- 776.041 Use or threatened use of force by aggressor.
- 776.05 Law enforcement officers; use of force in making an arrest.
- 776.051 Use or threatened use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.
- 776.06 Deadly force by a law enforcement or correctional officer.
- 776.07 Use of force to prevent escape.
- 776.08 Forcible felony.
- 776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.
- 776.09 Retention of records pertaining to persons found to be acting in lawful self-defense; expunction of criminal history records.
One of the statutes that details law enforcements’ use of force in making an arrest is Sec. 776.05, below. (Underlining is added):
776.05 Law enforcement officers; use of force in making an arrest.—A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:
- Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;
- When necessarily committed in retaking felons who have escaped; or
- When necessarily committed in arresting felons fleeing from justice. However, this subsection shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and:
- The officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or
- The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.
So, under the above, Sec. 776.05, the following points are made regarding law enforcement’s right to use “any force.” This, of course, includes deadly force:
- The officer does not have to cease arrest efforts because the suspect resists or threatens to resist.
- The officer is justified in the use of any force:
- If s/he believes it is reasonably necessary for self defense or defense of others;
- In apprehending escaped felons.
Under the following statute, an individual may not use or threaten to use force to resist arrest:
776.051, Use or threatened use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.
- A person is not justified in the use or threatened use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
The United State Supreme Court’s Decisions Regarding the Use of Deadly Force
In Tennessee v. Garner, 471 U.S. 1 (1984), The United States Supreme Court held that unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” deadly force may not be used while pursuing a fleeing suspect.
Graham v. Conner, 490 U.S. 396 (1989), further clarified and limited excessive force by police and expanded individual’s rights during the course of an arrest, investigatory stop or personal seizure. The court had several important holdings, including, especially, that the Fourth Amendment protects the individual against unreasonable searches and seizures (arrest, excessive force, etc.). Also, the court held that reasonableness of excessive force must be analyzed from the perspective of the police from the events at the time of the incident, not in hindsight.
How Should an Individual Behave When Confronted by Police?
It would appear that the most likely way to avoid being injured, shot or killed by law enforcement during any kind of an investigatory stop or arrest – whether for a DUI or other driving offense, or being stopped when walking down the street, or in a store, or in any other circumstance – would be to surrender to the police and to not resist arrest.
As has been said repeatedly by commentators, the police have guns, tasers and other weapons. They are protected by bullet proof vests. They have extremely fast patrol cars, flashing lights, sirens and loudspeakers. They have immediate communication with other police and can – and do – call for immediate backup. The wise, conservative course of action would be to completely surrender if stopped by law enforcement – thereby increasing one’s chances of survival. Ultimately if there is an unwarranted or unreasonable stop, search, or seizure, the accused will have the opportunity to later challenge the arrest in court. The most important thing is to stay alive.
West Palm Beach Criminal Defense Attorney David W. Olson
If you were arrested for any criminal offense, and/or if you feel your stop, search, seizure or arrest was illegal, or if you feel law enforcement used unreasonable, excessive force, it is advisable to contact an experienced and effective criminal defense attorney. For more than 30 years, Attorney David Olson has defended thousands of clients accused of serious felonies and misdemeanors, including violent crimes, drug crimes, assault, domestic violence, DUI, reckless driving, sex offenses, weapons offenses and all other crimes. For a free case review, contact Attorney Olson at 561-833-8866.
Chapter 776, Florida Statutes (2015)
Tennessee v. Garner, 471 U.S. 1
Graham v. Conner, 490 U.S. 396