CopLaw Update

September 3, 2008


Training Is The 13th Juror


The below excerpts are from the cited Federal District Court. This Federal Fourth Amendment 'standard' in the 2nd circuit directly impacts the concept of the "Force Continuum". Any use of force needs to be trained to the 'objective reasonableness' standard whether it be Deadly Force or Non-deadly Force. A Force Continuum which explains any use of force as being either per se deadly or non-deadly is in direct conflict with current the Fourth Amendment Objective reasonableness Standard pursuant to this case and post Scott v Harris.. A fist strike may or may not be Deadly Force. A pepper spray use may or may not be the use of Deadly Force. A Taser use may or may not be Deadly Force. A Baton strike may or may not be Deadly Force. The Use of a firearm may or may not be the use of Deadly Force. Objective Reasonableness as to the use of any type of force awaits the Graham v Connor totality of factual circumstances test to determine justification under the Fourth Amendment. Of course this is the 'standard for the Fourth Amendment and does NOT address the Connecticut Constitutional Standard or Connecticut Statutory Standards of Negligence, Recklessness, Criminal Negligence and/or Intentional Criminal Misconduct.


Blake v. City of New York, No. 05 Cv. 6652 (S.D.N.Y. 07/06/2007)


No. 05 Cv. 6652 (BSJ)

Deadly Force… Defendants ask the Court to decide as a matter of law that the use of a properly trained police dog to apprehend a suspect by biting cannot constitute deadly force… Plaintiffs argue that a properly trained police dog can constitute deadly  force, and they ask the Court to submit the deadly force question to the jury.

 This was an important issue before Scott because jurors were instructed to apply more stringent standards in deadly force cases than in cases that did not involve deadly force. See Tennessee v. Garner, 471 U.S. 1, 3 (1985). Essentially, the Garner standards made it more difficult for defendants who use deadly force to justify their actions as reasonable. In Scott, the respondent claimed that Garner set forth three preconditions that must be met in order for the use of deadly force by the police to survive Fourth Amendment scrutiny: (1) the suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must have been necessary to prevent escape; and (3) the officer must have given the suspect some warning if feasible.*fn4 Scott, 127 S.Ct. at 1777.

 However, the Supreme Court emphasized in Scott that "Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force.' Garner was simply an application of the Fourth Amendment's 'reasonableness' test." Id; see also Willis v. Oakes, No. 06 Civ. 0015, 2007 U.S. Dist. LEXIS 44137, at  *12-13 (D. Va. June 19, 2007) (citing Scott). When evaluating the use of any type of force -- deadly or otherwise -- courts should apply the "objective reasonableness" standard of Graham v. Conner, 490 U.S. 386, 388 (1989). Id. at 1777-78. Under Graham:

 Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. . . . 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 the 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 resisting arrest or attempting to evade arrest by flight.

 As noted above, deadly force is simply a type of excessive force. No separate legal standard applies to cases involving deadly force. Like any other excessive force claim, cases involving deadly or potentially deadly force should be evaluated under the Graham       reasonableness test. Scott, 127 S.Ct. at 1777-78. ("Although respondent's attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of 'reasonableness.').

Here, as in Scott, the Court has no need to decide as a matter of law whether the police used deadly force. Id. at 1778 ("Whether or not [Defendants'] actions constituted application of 'deadly force,' all that matters is whether [Defendants'] actions were reasonable.")

 Accordingly, the Court need only craft a charge which will help a jury decide whether the force used in this case was reasonable under all the circumstances. The Court will explain that, in conducting this analysis, the jury may consider the Graham factors, namely, the severity of the crime; whether Plaintiffs posed an immediate threat to the safety of the officers; and whether the Plaintiffs actively resisted arrest. Graham, 490 U.S. at 396. If appropriate, the Court may instruct the jury to consider additional factors as requested by the parties. The Court will advise the jury that the objective reasonableness inquiry is      fact-specific, so the jury may consider any other aspects of this case that inform the reasonableness analysis.

The Court will not instruct the jury as to the definition of deadly force or the specific circumstances under which deadly force is or is not reasonable. That said, both sides may present evidence as to the amount of force a police dog can exert. Plaintiffs may present evidence that the police dog in this case could have killed Plaintiffs. Defendants may present evidence that the dog in this case could not have -- or was highly unlikely to have -- killed Plaintiffs. The parties may then argue that it was reasonable or unreasonable to use DJ under the circumstances of this case. But the Court will not instruct the jury as to deadly force.

 Foot Notes:

*fn2 While the Second Circuit has not decided the question, several other circuits have held that a properly trained police dog cannot, as a matter of law, constitute deadly force. See, e.g., Dunnigan   v. Noble, 390 F.3d 486, 492 n. 8 (6th Cir. 2004) ("No federal appeals court has held a properly trained police dog is an instrument of deadly force."); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988)("[W]e find that the use of a properly trained police dog to apprehend a felony suspect does not carry with it a 'substantial risk of causing death or serious bodily harm [i.e. deadly force].'"); Kuha v. Minnetonka, 365 F.3d 590, 598 (8th Cir. 2004) ("[T]he use of a properly trained police dog in the course of apprehending a suspect does not constitute deadly force.").

 *fn4 Plaintiffs' proposed jury charge states that deadly force is reasonable only where (1) a police officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others, and (2) where there are no non-deadly alternatives. See Tennessee v. Garner, 471 U.S. 1, 3 (1985); Cowan v.Breen, 352 F.3d 756, 762 (2d Cir. 2003); Brower v. County of Inyo, 884 F.2d 1316, 1317-18 & n.1 (9th Cir. 1989).

Editor's Comment: The reader is encouraged to provide this information to their agency's Legal Advisor for clarification and understanding as it relates to their respective Constitutional and Statutory law as filtered through their respective agency Use of Force Policy.

No one can kill me without my consent… John 10:11,18

It is more blessed to give than to receive. …Act 20:35


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