20/20 HINDSIGHT AND THE LAW ENFORCEMENT USE OF FORCE

Some law enforcement uses of force are criticized, after the fact, by providing alternatives the involved law enforcement officer(s) should have used, or conditions the officer should have realized or considered. Criticisms can include opinions suggesting the involved subject posed no significant threat to the officer(s), though in some cases, the subject had the capacity to inflict serious bodily injury or death. Opinions may not be supported with documentation indicating the critic had relevant and significant field experience or an understanding of human performance factors.

Following a traffic stop in 1995, Officer J. Leavitt placed the driver, Archie Elliot, under arrest for driving while intoxicated. Elliot was subsequently handcuffed, searched, and placed in the front seat of Officer Leavitt’s patrol car, seat-belted, with the door shut, and window closed. Eventually, Officer Leavitt and his assisting officer observed Elliot with his finger on the trigger of a small handgun. Officer Leavitt ordered Elliot to drop the gun, and after Elliot failed to comply, the officers shot and killed Elliot. A forensic analysis confirmed the handgun came from inside Elliot’s shorts. A grand jury declined to indict the officers and an internal investigation exonerated the officers of any wrong-doing.

Elliot’s parents eventually filed a federal suit against the officers alleging excessive force, suggesting Elliott did not pose a real threat to the officers as his hands were handcuffed behind his back, secured in a police car, with the involved law enforcement officers outside the car when they shot Elliot.

The evidence was indisputable that Elliot was in possession of a handgun, with his finger on the trigger, and in close proximity to the involved officers. The Fourth Circuit Court of Appeals found the force used by the law enforcement officers against Elliot was objectively reasonable, reversed the earlier ruling of the district court, and remanded the case with directions for its dismissal.

Among the appellate court’s findings included observations that “the Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm” and that a “reviewing court may not employ ‘the 20/20 vision of hindsight’ and must make ‘allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving.’ (Graham vs Connor).”

The court also found the nature and extent of the threat posed by Elliot was much less clear to the officers than it was in the case before the court. The original, district court suggested that the officers might have responded differently, requiring the appellate court to remind, “. . . this is the type of judicial second look that the case law prohibits.” The court’s opinion continued, “. . . that the officers could have moved away from the car is, unfortunately, a suggestion more reflective of the ‘peace of a judge’s chambers’ than of a dangerous and threatening situation on the street.”

The original court was also concerned that the number of shots fired by the law enforcement officers was excessive. The appellate court found that “the number of shots by itself cannot be determinative as to whether the force used was reasonable. . . . That multiple shots were fired does not suggest the officers shot mindlessly as much as it indicates that they sought to ensure the elimination of a deadly threat.” The court also rejected the contention that Elliott’s intoxication somehow made him less threatening and opined, “No citizen can fairly expect to draw a gun on police without risking tragic consequences. And no court can expect any human being to remain passive in the face of an active threat on his or her life. . . . Officers need not be absolutely sure, however, of the nature of the threat or the suspect’s intent to cause them harm-the Constitution does not require that certitude precede the act of self protection.”

QUESTIONS

Why do you think courts error in evaluating the reasonableness of a law enforcement use of force, sometimes discounting clearly established and well-known case law?

Do overturned decisions have any impact on a community? If not, why? If so, how?

Do initial decisions, though later overturned, influence a law enforcement officer’s decision to use force? If not, why? If so, how? What are potential consequences?

Is hindsight ever reasonable in evaluating a use of force? If so, when? If not, why? For law enforcement officers only? For citizens only?

Does the Elliot vs. Leavitt decision have any relevance to a civilian use of force? Should it?

REFERENCES

Elliot vs. Leavitt, 105 F.3d 174 (1997), Nos. 96–1150, 96–1151.

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

http://caselaw.findlaw.com/us-4th-circuit/1368178.html (Elliot vs. Leavitt).