You may have read an article we published Sunday about a Connecticut politician’s proposed legislation to try and override the Supreme Court’s rules on police use of force.
If you didn’t, check it out here.
After the article made its rounds, we began being inundated with people that suggested the bill may violate the Constitution.
Before we get into the specifics, let’s take a look at the background of the proposed bill.
A recent officer-involved shooting in Wethersfield sparked the controversy behind police use of force. It’s been a hot topic across the country, and states like California and New Hampshire are looking to make changes on when an officer is legally allowed to pull the trigger and take a life.
If this Connecticut lawmaker gets his way, it could absolutely lead to more officers being killed in the line of duty. What’s worse, this proposed amendment is flying way under the radar and could potentially pass without even a public hearing on it.
Senator Gary Winfield’s bill includes language that would go so far as to essentially override a number of Supreme Court rulings.
Here’s the deal.
The Supreme Court has ruled that use of force has to be viewed from the perspective of an officer on the scene and without the benefit of 20/20 hindsight.
That means that if an officer believes that deadly use of force is justified based on the information that officer has at the time of their split-second decision, then they are legally authorized to do what has to be done to protect themselves and the public.
It specifically protects them against the public and media perception of what everyone else thinks SHOULD have been done.
Under Section 53a-22 in Connecticut, if the officer believed his life was in jeopardy, then he was justified in that shooting.
Connecticut Senator Winfield wants to change the law so that if an officer believes that his/her life or that of others is in jeopardy, but other facts or information later emerge after the killing, that the officer could be charged with murder.
If it passes it will put the lives of countless officers and those they serve and protect at risk.
The law currently specifies that a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which, if true, would constitute an offense.
To simplify it – if an officer believes that a life is in jeopardy and will be lost if they don’t use deadly force, then they are authorized to use that force.
The Supreme Court backs this law up.
The U.S. Supreme Court ruled that the Fourth Amendment to the U.S. Constitution prohibits the use of deadly force to effect an arrest or prevent the escape of a suspect.
That’s unless the officer reasonably believes that the suspect committed or attempted to commit crimes involving the infliction or threatened infliction of serious physical injury and a warning of the intent to use deadly physical force was given, whenever feasible.
That stems from the ruling in Tennessee v. Garner, 471 U.S. 1 (1985)).
What’s more check out Graham v. Connor, 490 U.S. 396, 397 (1989)).
In that ruling, the Court has said:
the test of reasonableness under the Fourth Amendment is not capable of “precise definition” or “mechanical application.” “[T]he reasonableness of a particular use of force must be viewed from the perspective of a reasonable officer at the scene, rather than with 20/20 vision of hindsight….” Moreover, “allowance must be made for the fact that officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.” The question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them.
Read: Monday morning quarterbacking can’t be used to convict an officer who believed that he or she had no choice but to use deadly force.
But here’s a huge issue… the one that puts Senator Winfield’s proposal at odds with the United States Supreme Court ruling.
He wants to add into the law that an investigation will be completed “based upon a preponderance of the evidence”.
Why is that such a big deal?
Simply put, it means that politicians and investigators can Monday morning quarterback the officer’s decision. It means that even if that officer made a decision based on all of the information that he or she had at the time of that split-second decision, that they can later be convicted if more information arises that he or she didn’t have access to when pulling the trigger.
Read: unless an officer is a mind-reader or traveled in time, then they’re guilty for pulling the trigger – even if they believed they had no choice to stay alive or keep others alive.
Now, onto some legal ramifications.
Some say that Winfield could defend his amendment against the ruling of Graham v. Connor by arguing that the State can give better protections to citizens then those created by Graham.
What about the Supremacy Clause?
Bingo. States have rights. They can make their own laws. But let’s not forget who holds the trump card.
The Supremacy Clause, Article VI, Clause 2 of the United States Constitution, establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the “supreme law of the land”.
So, is passing this legislation in direct violation of the Constitution? If the resolution passed, how would state judges proceed in criminal cases concerning officer involved shootings?
No matter what the federal government or the states might wish to do, they have to stay within the boundaries of the Constitution.
Our lawmakers take an oath to uphold the Constitution. So how is it that so many are writing new laws that defy it?
There are undoubtedly a ton of unanswered questions on the table.
Here’s What Senator Winfield Wants
An investigation that’s completed within 15 days of an officer involved shooting. Records made public immediately at the completion of the 15 days. A number of other tweaks to current law.
It also proposes language that restricts police officers from discharging their firearms at a moving vehicle during a pursuit with intent to apprehend the occupant of the motor vehicle.
Here are the specifics of the proposed legislation (changes are underlined).
“AN ACT CONCERNING POLICE MISCONDUCT. ”
Strike everything after the enacting clause and substitute the following in lieu thereof:
“Section 1. (NEW) (Effective July 1, 2017) No collective bargaining agreement entered into on or after July 1, 2017, shall contain any provision that limits the application of the provisions of section 51-277a of the general statutes, as amended by this act, to any peace officer, as defined in section 53a-3 of the general statutes.
Sec. 2. Section 51-277a of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2017):
(a) Whenever a peace officer, in the performance of such officer’s duties, uses physical force upon another person [and such person dies as a result thereof,] and such force results in a discharge of a firearm resulting in bodily injury, bone fracture, periorbital hematoma, wrist hematoma, concussion, laceration requiring sutures or any other force exceeding that which is reasonably necessary to accomplish a lawful purpose the Division of Criminal Justice shall cause an investigation to be [made] completed not later than fifteen business days after such use of physical force and shall have the responsibility of determining, based upon a preponderance of the evidence, whether the use of physical force by the peace officer was appropriate under section 53a-22. The division shall request (1) the [appropriate] employing law enforcement agency to provide all information in its possession relevant to such use of physical force, and (2) such assistance as is necessary from any appropriate law enforcement agency, other than the employing law enforcement agency, to determine the circumstances of the incident.
(b) In causing such an investigation to be made, the Chief State’s Attorney shall, (1) as provided in section 51-281, designate a prosecutorial official from a judicial district other than the judicial district in which the incident occurred to conduct the investigation, or (2) as provided in subsection (a) of section 51-285, appoint a special assistant state’s attorney or special deputy assistant state’s attorney to conduct the investigation. The Chief State’s Attorney [shall] may, upon the request of such prosecutorial official or special prosecutor, appoint a special inspector or special inspectors to assist in such investigation.
(c) Upon the conclusion of the investigation of the incident, the division shall file a report with the Chief State’s Attorney which shall contain the following: (1) The circumstances of the incident, (2) a determination of whether the use of physical force by the peace officer was appropriate under section 53a-22, and (3) any future action to be taken by the Division of Criminal Justice as a result of the incident. The Chief State’s Attorney shall provide a copy of the report to the chief executive officer of the municipality in which the incident occurred and to the Commissioner of Emergency Services and Public Protection or the chief of police of such municipality, as the case may be, and shall contemporaneously make such report available to the public.
(d) If the division determines that the use of physical force was not appropriate under section 53a-22, the peace officer shall be immediately suspended without pay by the appropriate law enforcement agency until the conclusion of any further proceedings involving such incident. If such peace officer is exonerated of all charges related to such incident, such peace officer shall be paid the full amount of all withheld pay.
(e) Notwithstanding any provision of the general statutes, on or after July 1, 2017, if any peace officer is convicted of or pleads guilty or nolo contendere to any (1) inappropriate use of physical force in violation of section 53a-22, or (2) crime of violence involving the unlawful use or threatened use of physical force under any other provision of the general statutes related to such peace officer’s employment, the appropriate law enforcement agency shall immediately terminate such peace officer’s employment.”
What The Experts Are Saying
According to Elliot Spector, an attorney who specializes in law enforcement, this contradicts the primary holding in the U.S. Supreme Court Case of Tennessee v. Garner.
“The Court stated that a police officer may use deadly force to prevent the escape of a fleeing suspect if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others,” said Spector.
He also said that proposed language would prevent an officer from stopping a fleeing vehicle in other ways as well.
“If an officer positions his or her patrol vehicle in front of a fleeing vehicle while remaining in his or her patrol vehicle, then technically, their “body” is in front of the fleeing car,” he said. “This would be restricted under Winfield’s proposal.”
He says the proposal takes away the ability of an officer to protect innocent people.
“This provision justifies the “unreasonable” belief that people will drive toward officers without regard to the life of an officer rather than complying with the officer’s orders,” he said.
He poses whether it makes more sense to allow suspects who pose a risk to innocent citizens to escape.
“Does it make sense to take away this tactic because of the risk that the dangerous person may be harmed and then continue to endanger innocent persons?” he asked. “This flies in the face of Scott v. Harris where the (Supreme Court) articulated the officer’s greater responsibility is to protect innocent people even if it means using deadly force against those who create the risk to others.”
Law Enforcement Today obtained a copy of an email sent from Spector the IACP Legal Officer’s list serve responding to the question about racial & ethnic disparity in police use of force.
“If these legislators want to make effective change they should bring more police into schools to teach our children about the risks of engaging in unlawful acts and high risk behaviors,” he said. “The question in these cases is not ‘why did the officers use deadly force’, but ‘why did these young men chose to put themselves at risk by their unlawful and dangerous behaviors’.”
Spector says questionable shootings are rare in Connecticut.
“I had about 110 veteran officers in classes the last 2 weeks. None had ever shot anyone, but approximately 70 could have legally shot but chose not to, including me. I’ve been doing this survey for 4 years and have had probably 5,000 officers who have been surveyed. I may get one officer in a class and once in a while 2 who have shot someone but usually 60-70 % of the class could have shot but didn’t. Cops in CT use great restraint,” he said.
Here’s what Spector said in his email:
The best source for an analysis of the racial/ethnic disparity may be in comparing the Washington Post Police Shooting reports from 1/1/2015 and updated almost daily with FBI UCRs.
The POST classified the types of incidents in 2015 leading to police shooting deaths. Of the 991 deaths:
730 involved violent crimes (shootouts, stabbings, hostage situations and assaults) 73.7%
783 persons armed with deadly weapons 79%
54 motor vehicles (driving at or dragging officers, ramming cruisers)
34 toy weapons
39 unknown weapons
93 unarmed (most believed to be armed, retrieving a weapon, attacking or fighting police)
Obviously there is an overlap in the above classifications as you may have a person committing a violent crime who is also armed with a deadly weapon. The conclusion is clear that almost all police shootings involve people committing violent crimes who are actually or perceived to be posing a risk of serious injury or death to officers or others. Descriptions and classifications by the POST in subsequent years is less complete.
Compare the POST analysis and statistics with the FBI UCRs.
From 2014 to 2017 Blacks/African Americans arrested for the following offenses included approximately:
52% of all murders and intentional manslaughters
55.3% of all robberies
37.3% of all violent crimes
32.9% of all aggravated assaults
The harsh reality is that we are not doing enough to help our nation’s children to make better life decisions so they do not commit crimes that lead to confrontations with police.
If Senator Winfield really cares about protecting the public, instead of proposing legislation like this… he should instead spend some time doing some ride-alongs with police departments. He should then take a couple of days and go through role-playing exercises with departments that show the split-second decisions they have to make.
This legislation is bad for police officers… bad for everyday citizens… and good only for those who like knee-jerk reactions meant at removing safety, law and order from society.