Section 4.5: The Law and Policing

Criminal law refers to the laws dealing with crimes and the criminal justice system. Criminal law has two main parts: substantive criminal law and procedural criminal law. Substantive criminal law is made up of laws that define criminal acts. Procedural criminal law, on the other hand, determines how the criminal justice system should handle people accused of committing a crime.

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Since the police are the ones who first come into contact with citizens suspected of committing a crime, the law of criminal procedure has a lot to say about how the police should treat people. Criminal procedure is a branch of law that governs how the government investigates, prosecutes, judges, and sentences those accused of crimes.

To determine how the police should treat people, the most important body of law is the Constitution of the United States. The Bill of Rights, part of the Constitution, outlines the fundamental rights of individuals suspected of committing crimes. The United States Supreme Court interprets the Bill of Rights and can establish police practices in the field.

In addition to the Bill of Rights, state constitutions, statutes, and administrative rules dictate police conduct. All of these laws together form the body of procedural law. The most significant laws that concern police conduct are the Fourth and Fifth Amendments of the United States Constitution.

Police and the Bill of Rights

The Fourth Amendment

The Fourth Amendment states, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (U.S. Const. amend. IV).

The Fourth Amendment protects the fundamental right of individuals to be secure in their persons, homes, papers, and belongings from unreasonable searches and seizures by the government. This means that the government cannot search someone’s property or seize their possessions without a valid reason, such as obtaining a warrant from a judge or magistrate based on probable cause. The amendment requires that warrants describe the place to be searched and the items to be seized. 

The Fifth Amendment

The Fifth Amendment states, No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, …; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law… (U.S. Const. amend. V).

The Fifth Amendment of the United States Constitution protects several fundamental rights of individuals accused of a crime. It guarantees the right to a grand jury indictment for any serious crime. It also prohibits double jeopardy, which means a person cannot be tried for the same crime twice. The amendment protects individuals from self-incrimination, meaning they cannot be forced to testify against themselves in a criminal trial. Additionally, it ensures that individuals cannot be deprived of life, liberty, or property without due process of law. 

The Sixth Amendment

The Sixth Amendment states, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense (U.S. Const. amend. VI).

The Sixth Amendment of the United States Constitution guarantees several basic rights to individuals accused of a crime. It provides the right to a speedy and public trial by an impartial jury of one’s peers in the state and district where the alleged crime occurred. The amendment also guarantees the right to know the nature and details of the charges, the right to confront and cross-examine witnesses, and the right to have compulsory process for obtaining witnesses in one’s favor.

Finally, the amendment ensures that individuals have the assistance of counsel, or a lawyer, to defend themselves against the charges. The Sixth Amendment is a critical safeguard of due process and the rights of the accused in the United States.

The Fourteenth Amendment

The Fourteenth Amendment requires states to follow the same due process standards set by the federal Constitution and interpreted by federal appeals courts (U.S. Const. amend. XIV). This means that federal appellate courts have the power to examine the constitutionality of the actions taken by state government officials, including police officers and corrections officers.

It also means that high courts can review the constitutionality of state laws. However, only some of the rights guaranteed by the federal Constitution are considered part of due process, so the states do not enforce some protections. For example, in some states, the right to be indicted by a grand jury is not observed, and instead, they use a system of prosecutorial information.

🔍 Reflect

How do the protections guaranteed by the Fourth, Fifth, Sixth, and Fourteenth Amendments ensure the rights of individuals in the criminal justice process, and why is it essential for law enforcement officers to understand and uphold these constitutional rights?

The Right to Privacy

The concept of privacy is important in criminal law because it limits the power of the police to investigate and prosecute crimes. Privacy is not explicitly mentioned in the United States Constitution. Still, over time, the Supreme Court has established that certain rights contained within the Constitution combine to create a right to privacy. This right is significant because it limits police conduct in various areas, including searches and arrests.

However, it is essential to recognize that the right to privacy is not absolute, and the police are not entirely barred from interfering with a person’s privacy. Police officers are permitted to intrude on a person’s privacy to some extent, but they must do so in a reasonable manner. Their actions must be based on reasonable suspicion or probable cause, depending on the circumstances.

Probable cause is a crucial legal standard that determines the permissibility of police searches. In the United States, a search is generally considered lawful only if the police have probable cause to believe that the person they want to search has committed a crime. Probable cause is a legal standard that requires enough evidence to make a reasonable person believe that the person being searched is involved in illegal activity. If the police lack probable cause, the search is considered unreasonable and may be deemed unconstitutional under the Fourth Amendment of the United States Constitution.

🔍 Reflect

Why is the right to privacy important in limiting police power, and how does the requirement of probable cause ensure that searches and arrests are conducted lawfully and constitutionally?

Searches

The concept of probable cause is an essential part of the Fourth Amendment to the United States Constitution, which protects citizens from unreasonable searches and seizures by the government. Probable cause means that there must be sufficient evidence to make a reasonable person believe that a crime has been committed and that the person to be searched is involved in it. When police engage in activity that the courts consider a search, they must have probable cause.

It is essential to understand that what the courts consider a search may differ from how the term is commonly used. There are many exceptions to the probable cause requirement, such as objects in plain view or things located in open fields, which may not be subject to the probable cause standard, even though an average person may consider them a search.

When the courts consider a particular police action a search and the probable cause standard applies, the police cannot determine whether there is probable cause. The job of deciding whether probable cause exists falls on the courts. The police must present information to a judge, such as affidavits or witness statements, who then determines whether probable cause exists to allow a search.

It is essential to recognize that the decision to search someone is not made by the police alone but by the courts after evaluating the evidence. This process ensures that individuals are protected from unreasonable searches and seizures by the government and that the Fourth Amendment is upheld.

🔍 Reflect

How does the requirement of probable cause in the Fourth Amendment protect individuals from unreasonable searches and seizures, and why is it important for courts, rather than police, to determine the existence of probable cause?

Search Warrants

When an officer wants to search, they need probable cause for it to be considered legal. Because society expects police officers to find evidence and arrest criminals, officers may be overly eager to determine whether they have probable cause. Generally, the evidence that establishes probable cause must be presented to an impartial magistrate. If the magistrate agrees that probable cause exists, they will issue a search warrant.

Probable cause is a legal standard that requires enough evidence to make a reasonable person believe that a crime has been committed and that the person to be searched is involved. However, it is crucial to understand that the determination of probable cause is not made by the police alone. An impartial magistrate, typically a judge or judicial officer, must make the decision. The magistrate reviews the evidence presented to them, such as affidavits or witness statements, and decides whether probable cause exists to issue a search warrant.

A search warrant is an official court order that allows the police to search a specific location or person for evidence of a crime. It is issued by a magistrate only if there is probable cause to believe that evidence of a crime may be found in the location or on the person to be searched. The search warrant specifies the area to be searched and the items that may be seized.

By requiring police officers to obtain a search warrant from a magistrate before searching, the Fourth Amendment protects individuals from unreasonable searches and seizures by the government. Using search warrants ensures that officers are held accountable for their actions and that evidence obtained in a search can be used in court.

Probable Cause

For a warrant to be issued, a magistrate must determine that probable cause exists. This determination is made based on a sworn statement called an affidavit. When evaluating probable cause for a search, the courts use a reasonableness test that takes into account the training and experience of police officers. The test is not only what a reasonable person would believe but also what a reasonable police officer would believe based on the evidence and their training and experience.

It is important to note that the standard for establishing probable cause is “more likely than not.” This means there must be a greater than 50% chance that the person to be searched is involved in criminal activity. This standard is lower than the proof beyond a reasonable doubt required for a criminal court conviction.

The reasonableness test used by the courts recognizes that police officers are trained to identify suspicious behavior and to gather evidence in a way that a layperson may not be able to do. However, this does not mean officers can use their training and experience to violate an individual’s rights. The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures, and officers must respect these rights even when they suspect criminal activity.

The Particularity Requirement 

Particularity in a search warrant means that the warrant must be specific enough to avoid confusion about the place or location to be searched. This requirement is essential because it ensures that officers stay within the warrant’s scope and do not conduct searches in areas that are irrelevant to the investigation. For example, a warrant that authorizes a house search must describe the house so that it can be easily distinguished from other homes in the area.

Additionally, the warrant must specifically describe the items or persons to be seized. This requirement ensures that officers only take things that are relevant to the investigation or within the warrant’s scope. For example, a warrant that authorizes the search of a vehicle must describe the vehicle in a way that distinguishes it from other vehicles on the road.

The particularity requirement is an important protection against government overreach. It ensures that individuals are protected from unreasonable searches and seizures by the government and that law enforcement officers are held accountable for their actions. By requiring specificity in search warrants, the Fourth Amendment helps ensure that law enforcement officers conduct searches in a manner consistent with the rights of individuals. This requirement helps to maintain public trust in law enforcement and the justice system as a whole.

Obtaining and Executing a Search Warrant

The process for obtaining a search warrant varies depending on the jurisdiction. In many cases, the state’s Supreme Court, where the warrant is sought, provides detailed instructions in a legal document called the Rules of Criminal Procedure. These rules are based on the Fourth Amendment to the United States Constitution, which protects individuals from unreasonable searches and seizures by the government.

When applying for a search warrant, law enforcement officers must provide all their evidence in an affidavit. An affidavit is a sworn statement describing the evidence the officer believes supports the probable cause for the search. The affidavit is presented to a judge or magistrate, who reviews the evidence and determines whether probable cause exists to issue a search warrant.

The Supreme Court also dictates the rules for executing a search warrant. As a general rule, the warrant must be served during daylight hours, and officers must identify themselves as law enforcement officers and request entry into the place to be searched. This requirement is known as knock and announce. This requirement aims to give the occupants of the site to be searched an opportunity to answer the door and allow the officers to enter without using force.

In some cases, officers may be exempt from the knock-and-announce requirement if they have reason to believe that announcing their presence would be dangerous or would allow evidence to be destroyed. However, these exemptions are limited and are subject to review by the courts.

No-knock Warrants

While the general rule is that law enforcement officers must knock and announce when serving a warrant, there are exceptions to this rule. Officers may obtain special permission from a judge to execute a no-knock warrant if they have a legitimate fear that announcing their presence would endanger lives or allow criminals to destroy evidence. A no-knock warrant authorizes law enforcement officers to enter a structure without warning and break down doors if necessary.

No-knock warrants are controversial because they may be seen as violating the Fourth Amendment to the United States Constitution, which protects individuals from unreasonable searches and seizures by the government. Civil liberty advocates argue that such warrants infringe on the privacy rights of individuals and may lead to unnecessary violence or property damage.

On the other hand, law enforcement officers defend the use of no-knock warrants because they can save lives and often result in the seizure of illegal contraband. For example, in cases where drug dealers are known to be armed and dangerous, announcing their presence before entering could lead to a violent confrontation. In these situations, a no-knock warrant may be necessary to ensure the safety of officers and the public.

🔍 Reflect

Why are search warrants and the requirement of probable cause essential for protecting individuals’ rights under the Fourth Amendment, and what are the potential risks and benefits of using no-knock warrants in law enforcement?

Searches Without Warrants

In the United States, there is a general requirement that law enforcement officers must obtain a search warrant before searching. However, there are some situations where officers may be allowed to search without a warrant. These are known as exceptions to the warrant requirement.

One of the most common exceptions is an exigent circumstances search. This type of search is performed in emergencies where law enforcement officers need to act quickly to prevent harm to individuals or to prevent the destruction of evidence. For example, if officers believe that a suspect has a bomb that is about to detonate, they may be able to search without a warrant to locate and disable the bomb (Kentucky v. King, 563 U.S. 452, 2011).

Another exception is a consent search. If a person voluntarily permits law enforcement officers to search their property, they may search without a warrant. However, it is essential to note that consent must be given voluntarily and cannot be obtained through coercion or deception (Schneckloth v. Bustamonte, 412 U.S. 218, 1973).

A hot pursuit search is another exception to the warrant requirement. This occurs when a suspect flees from law enforcement officers and enters a private place, such as a home. In this situation, officers can continue pursuing and searching for the suspect without a warrant (Warden v. Hayden, 387 U.S. 294, 1967).

Automobile searches are also an exception to the warrant requirement, but they do require probable cause. This is because vehicles are mobile and can easily be moved or driven away if officers obtain a warrant before searching them (Carroll v. United States, 267 U.S. 132, 1925).

Officers are allowed to search a person and the surrounding area after being arrested. This is a search incident to arrest and is done to preserve evidence and protect officers from hidden weapons (Chimel v. California, 395 U.S. 752, 1969).

The above list of search warrant requirement exceptions is by no means exhaustive.  There are many such exceptions.  Understanding these exceptions to the warrant requirement is vital for law enforcement officers, as it allows them to conduct searches in emergencies and during criminal investigations. However, ensuring that these searches are done legally and following the Fourth Amendment of the United States Constitution is also critical.

🔍 Reflect

How do the exceptions to the warrant requirement balance the need for law enforcement to act quickly in certain situations with the protection of individuals’ Fourth Amendment rights, and why is it important for these exceptions to be clearly defined and regulated?

Arrest

The Fourth Amendment of the United States Constitution safeguards individuals from unreasonable searches and seizures, which also applies to arrests. An arrest is considered a seizure of a person for legal purposes, and as such, the Fourth Amendment prohibition against unreasonable searches and seizures comes into play. Simply put, a person is considered to have been arrested when they are taken into custody to be charged with a crime. 

Although the Constitution generally requires police officers to have a warrant before making an arrest, most arrests are made without one. However, under all circumstances, an officer must have probable cause to make an arrest. Probable cause means that the officer has reasonable grounds to believe that the person has committed or is about to commit a crime. When a warrant is sought, the supporting evidence must be included in an affidavit, just as with a search warrant.

Historically, the common-law rule was that an officer could arrest without a warrant if they had evidence amounting to probable cause that the person had committed a felony. For a misdemeanor, however, the crime had to be committed in the officer’s presence. 

Many jurisdictions still follow these same basic common-law rules today. However, many jurisdictions have established laws that permit lawful arrests without a warrant for certain misdemeanors, even if the officer did not directly witness the crime. Examples include domestic battery statutes. State legislatures usually establish such rules as statutes.

Arrest Warrants

An arrest warrant is a legal document issued by a court that allows law enforcement officers to take a particular individual into custody. To obtain an arrest warrant, the police must present a judge with evidence that shows probable cause, which means that the officer has reasonable grounds to believe that the person has committed or is about to commit a crime. An arrest warrant must specify the individual to be arrested and the crime for which they are being arrested.

In general, an arrest warrant is required for law enforcement officers to enter a person’s home to make an arrest. This requirement is designed to protect an individual’s Fourth Amendment rights to privacy and to prevent unwarranted intrusions into a person’s home. However, there are some exceptions to this rule. For example, in exigent circumstances, where there is a pressing need for immediate action to prevent harm to others or the officers themselves, the police can enter a person’s home without a warrant to make an arrest.

It is important to note that if the person arrested is not in their home at the time, the police may need to obtain a search warrant to enter another person’s home to make the arrest. The Fourth Amendment only allows the police to search and seize property related to the crime or the individual named on the warrant.

Domestic Violence Arrests

Social scientific research has found that arresting the primary aggressor in domestic violence cases prevents further battering (Sherman & Berk, 1984). This research led to legislation in many states requiring police to identify the primary aggressor in domestic violence situations (Felson et al., 2002). 

While these offenses are generally classified as misdemeanors, these special legislative enactments command law enforcement to take the primary aggressor into custody despite not having a warrant or seeing the crime occur. Despite such laws in many jurisdictions since the 1970s, many police departments do poorly dealing with domestic violence cases (Buzawa & Buzawa, 2003).

🔍 Reflect

How does the requirement of probable cause for arrests, whether with or without a warrant, ensure the protection of individuals’ Fourth Amendment rights, and why is it significant for law enforcement to adhere to these standards, especially in sensitive cases like domestic violence?

Terry Stops

When police officers make an arrest, they take away a person’s freedom and restrict their ability to move, communicate, and act as they usually would. This is a significant intrusion on the individual’s rights, which the Constitution protects. As a result, the police must have a good reason, or probable cause, to make an arrest. This means they must have enough evidence to convince a reasonable person that the arrest is necessary.

However, there are situations where the police need to take less severe action than an arrest but still require them to restrict a person’s freedom. These situations are known as Terry stops, named after a 1968 court case called Terry v. Ohio.

During a Terry stop, the police can briefly detain and question a person if they have reasonable suspicion that the person is involved in criminal activity. The police are allowed to ask questions to determine if there is a reasonable basis for further action, and they are also allowed to pat down the person to check for weapons. This type of pat-down search is known as a stop-and-frisk or simply a frisk.

The evidence required for a Terry stop is not as high as probable cause but must be more than a mere hunch or suspicion. The court calls this level of evidence reasonable suspicion, which means that specific and articulable facts would lead a reasonable police officer to suspect that a crime has been, is being, or is about to be committed.

Reasonable suspicion can be based on various factors, such as the time of day, the location, the behavior of the person in question, and information provided by witnesses or other sources. However, it is essential to note that the evidence used for a Terry stop differs from the evidence used in a courtroom. The evidence must be reliable and based on direct observation or physical evidence in court. In contrast, the evidence used for a Terry stop can be based on hearsay or rumors as long as it is reliable and supports the reasonable suspicion of the police officer.

🔍 Reflect

How do Terry stops balance the need for police to investigate suspicious behavior with the protection of individual rights, and why is it important for officers to have a clear understanding of reasonable suspicion to perform these stops lawfully?

The Exclusionary Rule

As previously discussed, the Supreme Court of the United States can tell law enforcement officers how to treat people as long as they have a constitutional reason for doing so. What happens if the cops do not listen to the Court and violate somebody’s rights? There are several remedies, but the most important remedy is the exclusionary rule. The exclusionary rule is straightforward. It states that illegally obtained evidence cannot be admitted to criminal court. 

Here, illegally obtained means obtained in violation of the defendant’s constitutional rights. The defendant’s attorney must file a motion to suppress the evidence before trial. The judge will then review the evidence, and if the judge determines that it was obtained in violation of the defendant’s rights, it will be suppressed, and the jury will never see the evidence. Its existence cannot even be mentioned at trial.

The U.S. Supreme Court established the exclusionary rule in 1914 in the case of Weeks v. U.S. (232 U.S. 383). At that time, the rule only applied to Federal agents. States were on their own to decide whether to allow illegally obtained evidence into state courts. In 1961, in Mapp v. Ohio (367 U.S. 643), the Court decided that the exclusionary rule was fundamental to a fair trial and was thus applicable to the state via the Fourteenth Amendment’s due process clause. 

The liberal Warren Court decided Mapp. Since the time of the Warren court, the Supreme Court has become more and more conservative. Conservative justices, while unwilling to overrule the basic premise of the exclusionary rule, have eroded it by creating various exceptions.

For example, the court created a good faith exception in the 1984 case of U.S. v. Leon (468 U.S. 897). The good-faith exception states that if the police act on a warrant they believe to be valid, and a court later determines that it is invalid, the evidence can still be used in court.

🔍 Reflect

How does the exclusionary rule uphold the protection of individual rights under the Constitution, and why is it essential for courts to carefully balance exceptions to this rule to maintain fair trial standards?

The Fifth Amendment

The phrase “plead the fifth” is a commonly used expression in the United States that refers to the Fifth Amendment of the US Constitution (US Const. amend. V). This amendment protects individuals accused of a crime and gives them the right to remain silent to avoid incriminating themselves. This right has a significant impact on how the police conduct interrogations.

In the past, before the civil rights movement, the police would use any method they deemed necessary to extract a confession from a suspect. This often involved physical and psychological torture or making threats. However, this approach led to false confessions as innocent people would confess to crimes they did not commit to stop the pain. In 1936, the landmark case of Brown v. Mississippi (297 U.S. 278) prohibited this type of police conduct.

The right against self-incrimination is limited to confessions made by the suspect in court. This means that suspects cannot be forced to incriminate themselves through their words. However, this protection does not extend to physical evidence such as fingerprints, DNA samples, blood tests, and other similar tests. It is also important to note that a person can waive their right to remain silent if they choose to do so voluntarily. This means that police interrogations can still be effective if a suspect willingly chooses to speak with the police.

Confessions and Counsel 

The Fifth Amendment of the US Constitution protects individuals from self-incrimination. This means individuals cannot be forced to say anything that could incriminate them in a criminal investigation. The US Constitution also protects the right to counsel and provides individuals with the right to have a lawyer present during police questioning (US Const. amend. V).

In the 1964 case of Escobedo v. Illinois (378 U.S. 478), the Court clarified that when police questioning moves from an investigation to an accusation, the right to counsel becomes active. In other words, once the police have identified a witness as a potential suspect, the right to counsel is triggered.

The right to counsel means the suspect can consult with an attorney before answering further questions. This ensures that the suspect has legal representation during the interrogation process and that their rights are protected (Miranda v. Arizona, 384 U.S. 436).

The right to counsel is essential to ensure that suspects have legal representation and are not coerced into making false confessions. In simpler terms, if the police only ask questions to gather information, the right to counsel does not apply. However, when the police start questioning a person as a suspect, the right to counsel becomes active.

Miranda Warnings 

The court decided that the protections established in Escobedo were not enough. Two years later, in Miranda v. Arizona (1966), the Court established specific interrogation procedures to ensure the Fifth Amendment rights of criminal defendants.

In this landmark case, Miranda confessed to kidnapping and rape. The police obtained the confession without a lawyer being present and without informing Miranda of his right to remain silent. The Court ruled that Miranda was entitled to such a warning, so his confession was inadmissible.

The Miranda decision had a far-reaching impact, obliging every police officer in America to inform suspects of their rights before questioning them while in custody. Suspects must be advised that they have the right to remain silent, that anything they say can be used against them in court, that they have the right to an attorney, and that they will be provided with an attorney by the state if they cannot afford one.

The suspect may waive any or all of these rights, but the right to remain silent can be invoked at any time. This means that suspects can stop the questioning at any time, even if they waived their right to remain silent, and must be provided with an attorney if they request one.

Some police officers and conservative commentators at the time viewed the Miranda decision as a legal technicality that limited police effectiveness. Over the years, conservative courts have refused to overrule Miranda but have created exceptions. For example, in New York v. Quarles (1984), the Court created a public safety exception, allowing officers to ask questions without informing the suspect of their Miranda rights if public safety is involved.

In Nix v. Williams (1984), the court created the inevitable discovery exception, meaning that evidence obtained through improper questioning is admissible if the police had inevitably discovered the evidence anyway.

It is important to note that not all situations require police to inform suspects of their Miranda rights. For example, if the police briefly stop someone on the street or during a traffic stop, Miranda does not apply. Also, if a suspect voluntarily confesses to a crime without being questioned by the police, Miranda does not come into play.

🔍 Reflect

How do the protections provided by the Fifth Amendment, including the right against self-incrimination and the right to counsel, impact police interrogations, and why is it crucial for law enforcement to adhere to these protections to ensure fair and just legal proceedings?

Police Use of Force

The use of force by police officers is a topic that has been heavily debated in recent years. Police officers have the authority to use force to accomplish a legitimate criminal justice purpose. This means that police officers can use force when it is necessary to take a person into custody or to prevent a suspect from fleeing. However, the use of force must be reasonable, meaning it must be proportional to the situation and the threat posed.

Determining what constitutes reasonable force in a given situation is subjective and can be difficult. It is important to note that not all situations will require force. Police officers must first attempt to de-escalate the situation before resorting to force. When the use of force is necessary, officers must use only the amount of force that is required to accomplish the legitimate criminal justice purpose. Using excessive force is not only unlawful, but it also poses a severe threat to an individual’s civil rights.

Police brutality refers to situations where police officers use excessive force during an arrest or other law enforcement activity. This can include physical violence, verbal abuse, or other forms of aggressive behavior. Police brutality seriously violates an individual’s civil rights and can cause significant harm, including serious injuries or even death.

The issue of police brutality has gained significant attention in recent years, with many instances of excessive force being captured on video and shared widely. This has led to increased scrutiny of police practices and calls for reform. It is important to note that not all instances of police use of force are considered police brutality.

The use of force is sometimes necessary to protect the public and the police themselves. However, the use of force must be proportional to the threat posed and must not exceed what is necessary to accomplish a legitimate criminal justice purpose.

Civil Liability and Criminal Prosecution

When police officers use excessive force, they risk facing legal action. Most states have laws that allow individuals to sue police officers for torts such as wrongful death and false imprisonment when the police go beyond what is reasonable and legitimate. In addition to state laws, federal remedies are in place, such as 1983 suits.

A tort is a wrongful act that causes harm to another person and gives rise to a civil lawsuit. When police officers use excessive force, they can be sued for committing a tort. For example, if a police officer uses excessive force during an arrest and causes the suspect’s death, the officer could be sued for wrongful death. Similarly, if a police officer detains an individual without probable cause or a warrant, the officer could be sued for false imprisonment (Lynch & Ozerkevich, 2021).

1983 suits refer to lawsuits brought under section 1983 of the Civil Rights Act of 1871. This law allows individuals to sue state or local government officials, including police officers, for violating their civil rights. To bring a 1983 suit, the plaintiff must show that the government official acted under the color of law, meaning that they acted in their official capacity as a government employee and violated a constitutional right (42 U.S.C. § 1983; Harlow v. Fitzgerald, 1982).

It is important to note that bringing legal action against police officers can be a challenging and complex process. Police officers have qualified immunity, which protects them from being held liable for actions taken during their duties unless they violate a clearly established statutory or constitutional right. This means that even if a police officer’s actions are deemed excessive, they may not be held liable if they can show that they were taken in good faith and in accordance with their duties (Mullenix, 2017).

🔍 Reflect

How does the requirement for police officers to use reasonable force balance their need to maintain public safety with the protection of individual civil rights, and why is it essential for the legal system to hold officers accountable for excessive force?

Deadly Force

Police officers have the legal authority to use deadly force when they believe they are in imminent danger of serious bodily harm or death. This right extends to the protection of others. However, there was a time when the fleeing felon rule was a common law doctrine that allowed police officers to use deadly force to apprehend a felon trying to escape custody or a lawful arrest. The court struck down this rule in Tennessee v. Garner (1985).

In Tennessee v. Garner, the court found that a Tennessee statute allowing officers to use all necessary means to effect an arrest, including deadly force, against a fleeing suspect was unconstitutional. The court held that using deadly force to apprehend a fleeing suspect was a seizure under the Fourth Amendment. Such force could only be used when it was necessary to prevent the escape and when the suspect posed a significant threat of death or serious physical injury to the officer or others (Tennessee v. Garner, 1985).

After the court’s decision in Tennessee v. Garner, the standard for using deadly force became reasonableness as viewed through the lens of dangerousness. Police officers can only use deadly force when necessary to prevent imminent danger of death or serious bodily harm to the officer or others. The use of deadly force must be reasonable and proportional to the threat.

It is important to note that using deadly force is a serious matter that police officers must carefully consider. The decision to use deadly force must be based on objectively assessing the situation and the threat posed. Police officers must receive appropriate training to ensure that they can make these critical decisions safely and effectively.

Recent high-profile cases of police using deadly force have brought the issue to the forefront of national attention, particularly in the context of the Black Lives Matter movement. The deaths of George Floyd, Breonna Taylor, and many others have sparked nationwide protests and renewed calls for police reform.

The death of George Floyd in Minneapolis, Minnesota, in May 2020 sparked protests across the United States and worldwide. Floyd died after a police officer kneeled on his neck for over nine minutes during an arrest, leading to a public outcry and renewed scrutiny of police use of force. The incident led to nationwide protests and calls for police reform, including the “defund the police” movement that seeks to reallocate resources from law enforcement to social services.

The death of Breonna Taylor in Louisville, Kentucky, in March 2020 also highlighted issues of police use of force and racial disparities in the criminal justice system. Taylor was shot and killed by police officers during a no-knock raid on her apartment, leading to widespread outrage and calls for justice.

These cases and others like them have highlighted the need for reforms in police training, policies, and accountability. The Black Lives Matter movement has called for an end to systemic racism and police brutality and meaningful changes to the criminal justice system to ensure that everyone is treated fairly and equitably.

In response to the protests and calls for reform, some cities and states have reformed their police departments, including implementing new use-of-force policies, increasing community oversight, and investing in community-based alternatives to policing.  Recent history indicates that legal solutions are insufficient solutions to the problem.

🔍 Reflect

How has the legal framework around the use of deadly force by police officers evolved over time, and what impact has this had on public perceptions of law enforcement and the demand for police reform?

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Last Updated:  07/13/2024

References

• Baker, D. (2020, September 23). Breonna Taylor grand jury decision: What we know. The New York Times.
• Brown v. Mississippi, 297 U.S. 278 (1936).
• Buzawa, E., & Buzawa, C. (2003). Domestic Violence: The Criminal Justice Response. Sage Publications.
• Carroll v. United States, 267 U.S. 132 (1925).
• Chimel v. California, 395 U.S. 752 (1969).
• Escobedo v. Illinois, 378 U.S. 478 (1964).
• Felson, R. B., Ackerman, J. M., & Gallagher, C. A. (2002). Police intervention and the repeat of domestic assault. Journal of Research in Crime and Delinquency, 39(4), 384–400.
• Grinberg, E. (2020, June 1). How George Floyd’s death ignited a racial reckoning that shows no signs of slowing down. CNN.
• Harlow v. Fitzgerald, 457 U.S. 800 (1982).
• Helderman, R., & Jenkins, S. (2020, June 9). The history behind the Black Lives Matter movement. The Washington Post.
• Kentucky v. King, 563 U.S. 452 (2011).
• Lynch, K., & Ozerkevich, E. (2021). Police misconduct and civil rights litigation: An empirical study of the causes and effects of section 1983 litigation. Law & Society Review, 55(2), 279–312.
• Mapp v. Ohio, 367 U.S. 643 (1961)
• Miranda v. Arizona, 384 U.S. 436 (1966).
• Mullenix, L. M. (2017). Police use of force: A practitioner’s perspective. Journal of Criminal Law & Criminology, 107(1), 81-110.
• Nix v. Williams, 467 U.S. 431 (1984).
• New York v. Quarles, 467 U.S. 649 (1984).
• Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
• Terry v. Ohio, 392 U.S. 1 (1968)
• U.S. Const. amend. IV.
• U.S. Const. amend. V.
• U.S. Const. amend. VI.
• U.S. Const. amend. XIV.
• U.S. v. Leon, 468 U.S. 897 (1984)
• Weeks v. U.S., 232 U.S. 383 (1914)

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