Police Shootings: A Primer for the Lead Detective (Part 3)

by Sgt. Tony Monheim, Miami-Dade Police Department (Ret.)


The two most important court decisions governing the use of deadly force, Tennessee V. Garner and Graham v. Connor are three decades old.   Issues relating to the legal use of deadly force have historically evolved slowly and deliberately.  It is essential that the lead investigator assigned to police involved shootings have a complete understanding of these key cases.  The lead must also realize that there are numerous stages or critical junctures within the investigation that are of great consequence.



Graham v. Connor (1989)


The second area of deadly force sanctioned by the Supreme Court dealt with an imminent threat of harm from a subject. In Graham v. Connor the Court tried to establish a standard whereby the actions taken by the officer could be measured. That is, was the deadly force used reasonably; and in what circumstances does the force used become excessive?


On November 12, 1984, a diabetic named Dethorne Graham asked a friend to drive him to a convenience store to purchase some orange juice.  Graham felt light-headed and thought the orange juice might raise his blood sugar. As he rushed into the store, he noticed a long line of customers at the cash register and decided to go to the nearby house of an acquaintance instead, assuming that it would be faster than waiting in line. He hurried out of the store and jumped into his friend, William Berry’s, vehicle. He then told Berry to quickly drive to the acquaintance’s residence.


Connor, a uniformed police officer with the Charlotte, North Carolina police department, watched all of this transpire and became suspicious.  Several blocks away from the convenience store, Connor pulled the vehicle occupied by Graham and Berry over. The Court acknowledged that this was a typical “investigatory stop” prompted by Graham’s behavior. 


While waiting for backup to arrive, Officer Connor observed Graham exit the vehicle, sprint around it twice, and finally pass out on the curb.  Officer Connor revised his assessment and now believed that he was dealing with a common drunk.  When the backup officers arrived, they handcuffed Graham and, thinking he was a typical rowdy drunk, threw him somewhat roughly and unceremoniously onto the hood of the police car. All this, despite Graham’s attempts to inform the officers that he was a diabetic. 


Meanwhile, it was learned by Officer Connor that Graham had done nothing wrong at the convenience store. He was, therefore, un-handcuffed, driven home, and released.  Somehow during the struggle, Graham sustained a broken foot, a bruised forehead, an injured shoulder, and cuts on his wrists.  He also claimed to suffer a loud ringing in his right ear from having his head slammed on the hood of the police car.


Writing for the majority, Justice William Rehnquist summarized the philosophy of the Court regarding the “reasonable” use of force. In fact, Rehnquist used the word “reasonable” (or some variation of it) 28 times in this relatively short opinion.  Obviously, he was trying to tell us something. The emphasis in Graham is on what may be considered reasonable at the moment. The below quotes, taken directly from Graham v. Connor, certainly bear this out:


 “Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat of thereof to effect it. Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application; however, its proper application requires careful attention to the facts and circumstances of each particular case, including severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively attempting to evade arrest by flight (Tennessee v. Garner).” 


“The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”


“With respect to the claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.”

“The calculus of reasonableness must embody allowance for the fact that police 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.”


It is evident from the language of the decision that the Court chose to create a Fourth Amendment principle of “objective reasonableness” in regard to regulating the use of force used by police officers; and that “reasonableness at the moment” is an evaluation that must be made by the officer at the time of the incident.  They also emphasized that this is a guideline that is “not capable of precise definitions or mechanical application.”



Brosseau v. Haugen


The Supreme Court extended the concept of “objective reasonableness” even further in the 2004 decision, Brosseau v. Haugen.  In this case, the Ninth Circuit Court of Appeals found that a state of Washington police officer named Rochelle Brosseau may have violated plaintiff Kenneth Haugen’s Fourth Amendment rights during a shooting incident and was, therefore, not entitled to “qualified immunity.” 


Officer Brosseau, a police officer in Puyallup, Washington responded to Haugen’s mother's house for a reported fight.  Officer Brosseau already knew that Haugen had an open no-bail felony warrant.  Haugen fled as the officer arrived, and she requested assistance. A perimeter was established, and a search was initiated.  After 30-40 minutes, a neighbor called the police saying there was a man hiding in her back yard.  As the officers responded to investigate, Haugen ran from behind a woodpile and jumped into a Jeep.  He then closed and locked all the doors.


Haugen began reaching under the seats of the vehicle, and believing he was looking for a weapon, Officer Brosseau drew her firearm and ordered him out of the vehicle. Haugen ignored her instructions.  The officer repeated her commands and, when he again disregarded them, she broke the driver’s side window with her gun.  She then hit Haugen on the head with the barrel and butt of her gun.  Undeterred, Haugen started the Jeep and began to drive away.  Officer Brosseau jumped to the side to avoid being hit by the Jeep and fired one shot, striking Haugen in the back.  Haugen, in his own words, “stood on the gas” and fled a high rate of speed. 


After a short time, Haugen realized he was shot and surrendered.  He was airlifted with a collapsed lung but survived.  He pled guilty to eluding and quickly sued the officer and the city of Puyallup for a violation of his civil rights.


The U.S. Court of Appeals for the 9th District found that Officer Brosseau acted inappropriately, un-constitutionally and illegally.  She was therefore not entitled to immunity from action.   They stated in their opinion that it was “clearly established” that the officer violated the Fourth Amendment.


The United States Supreme Court reversed the Ninth Circuit’s decision.  They cited two very similar cases (Cole v. Bone and Smith v. Freland), stating, “A car can be a deadly weapon and the officer’s decision to stop the car from possibly injuring others was reasonable.” (Officer Brosseau said in her post-shooting statement that she was in fear for the safety of her fellow officers and innocent by-standers in the area, including a 3-year-old child). Clearly, Officer Brosseau’s actions met the two-pronged test of Garner.


Although the Supreme Court bypassed the issue of whether Officer Brosseau’s actions were constitutionally acceptable or not, they did focus on the qualified immunity question.  The Court held that, “qualified immunity operates to protect officers from the sometimes-hazy border between excessive and acceptable force.”  They, in essence, instituted a grey area for the use of police force.  The Court ruled that within this grey area or “hazy border” deference must be given to the officer’s situation and qualified immunity must be granted.



The Crux of Graham


What then is the bottom line when considering the application of deadly force as delineated in the Graham decision?  The gist of all the rhetoric is this: Generally, a police officer’s actions may always be considered reasonable when he “takes a life to save a life.” Deadly force issues can be more easily assessed by using this basic standard. Even though nowhere in the Graham opinion is the term “deadly force” ever even mentioned, the application of the standards portrayed in this historic decision now govern all deadly force scenarios.  Any type of force, including deadly force, only becomes excessive when it is applied unreasonably.


In the final analysis, it is noteworthy that the Supreme Court of the United States has been staunch in their support of law enforcement regarding this formidable and enigmatic area of the law.  Although it is true that many of the lower courts have not been as empathetic, the Supremes have consistently acknowledged the dangers and complexities of police work. They definitely get it. Since the Garner decision, the high Court has been steadfast in its advocacy of our profession.  In decision after decision the justices have acknowledged how difficult the job of a law enforcement officer is in today’s society.  They have also denounced “second-guessing” and “Monday morning quarterbacking” by the lower courts when evaluating deadly force issues.  Chief Justice Warren Burger aptly summarized the Court’s unwavering position when he wrote:


“The lawyers sit in air conditioned courtrooms and go over the jury instructions; they debate all these things and parse the words…the cop on the other hand had two seconds to decide to shoot or not to shoot.  On some dark night when all our heads were on our pillows, this guy had to make a snap decision.”



Restricting Garner and Graham


Be aware that each state may not expand the law beyond that which has already been established by the Supreme Court or the Federal District Courts. States and local jurisdictions may, however, decide to diminish the power derived from a ruling and put further constraints on the officers they directly control. Why would they choose to do this? 


It may simply be that the Supreme Court of an individual state has interpreted the state’s constitution to be more restrictive.  Each state has the right to decide how their citizens will be treated. As long as all Federal Constitutional protections are adhered to, individual states may broaden the rights of their inhabitants and, in doing so, further inhibit the powers of their police. 


This is also true of individual law enforcement agencies. In an effort to more strictly control the actions of their officers (or supposedly limit liability), police departments may enact rules and policies that stringently regulate the use of deadly force for their members.


The lead OIS detective must, therefore, remain cognizant of any changes in the law or any modifications of departmental policies that could impact his investigation.  Knowing these nuances is key to any successful inquiry.  Remember, a violation of departmental policy is not necessarily an illegal act.



Critical Junctures


Typically included in virtually all the officer-involved shooting investigations are 10 critical junctures.  These critical junctures are:


•           Processing of the crime scene

•           The hospital scene

•           The area canvass

•           Next of kin notifications

•           Witness officer interviews

•           Civilian witness interviews

•           Shooting officer interviews

•           The autopsy (in death cases)

•           The press conference

•           Inquest/Grand Jury/Trial


It is significant that, with the exception of the last entry (Inquest/Grand Jury/Trial), all of these critical junctures will mostly likely take place within the first 24 hours of the investigation (or less). Officer involved shooting investigations are fast paced, demanding and, at times, staggering in their intensity. They require fervent concentration and stamina. These areas of the investigation are deemed so crucial because mistakes committed at any of these vital points could negatively impact the entire case. 


No aspect of an officer-involved shooting investigation is more important than the crime scene itself. Civilian witness statements are often suspect when deadly force is used by law enforcement. This is due to the animosity many people feel toward the police.


A scarcity of witnesses is common in most murder investigations. Very often, spectators are reluctant or unwilling to come forward and recount what they saw.  This is not the case, however, in officer-involved shootings. Witnesses seem to come out of the woodwork. Since many officer-involved shootings occur in poor, high-crime areas populated by those who may already harbor a strong dislike for the police, exaggerations and fabrications in witness accounts of a police shooting become standard.


News accounts of police shooting incidents repeatedly include interviews with “eye-witnesses” who relate in grisly detail how the officer shot multiple times and “for no reason.”  It is only when these individuals are eventually located and questioned that it is uncovered that they only arrived on the scene after the incident had taken place and were motivated by a disdain for authority or a desire for celebrity, or both.


Skepticism of witness statements should prevail if reconstruction of the crime scene, through scientific methods, does not correspond to the testimony. If what you see at the crime scene does not match the statements of the witnesses, be wary of the witnesses. 



Concluding Thoughts


Remember, as the lead, you have been entrusted with one of the most important investigations any detective is ever asked to undertake.  You must become an ardent truth-seeker, devoted to the collection of facts who is not swayed by others…an impartial purveyor of accuracy. The responsibilities of the inquiry are immense, the margins for error narrow, and the critical review of your investigation seemingly interminable.


Within reason, the lead investigator must take total charge of the investigation.  He must control the investigation and not let the investigation control him. He should never allow community activists or the media decide how the investigation will be conducted.  It is essential that attorneys for either the prosecution or the defense not have an undue influence on the outcome of a case.  Union or guild representatives should not be allowed to exert any inappropriate pressure on the investigation.


It is the lead investigator who is ultimately responsible for the outcome of the case. He will be the individual who will be “called on the carpet” in the event anything goes wrong, and because of this, the lead investigator should never let anyone make any decisions regarding his case that he is not in total agreement with.  This includes fellow detectives and supervisors.  Of course, when dealing with superiors, discretion is sometimes the better part of valor. Diplomacy is essential. Control must be maintained without angering the command staff. No one ever said that these types of investigations would be easy!