Coplaw Update

May 2007

 

 

Deadly Force Defined

Force Continuum is defined as: Proportionality of force under all the facts and  circumstances

There are six cases that defined Proportionality of force in the State of Connecticut:

TENNESSEE v. GARNER, 471 U.S. 1 (1985)

GRAHAM v. CONNOR, 490 U.S. 386 (1989)

Salim v. Proulx - 2nd cir - 1996

State of Connecticut v Scott Smith-Connecticut Appellate Court - 2002

Cowan v Breen - 2nd cir-2003

TIMOTHY SCOTT v. VICTOR HARRIS - 2007

"Deadly physical force" means physical force that can reasonably be expected to cause death or serious physical injury.
"Serious physical injury" means injury that creates a substantial risk of death or that causes serious disfigurement, serious impairment of health or serious loss or impairment of a function of any bodily organ.

In Smith v. City of Hemet, No. 03-56445, 394 F.3d 689, (9th Cir. 2005), cert. denied,City of Hemet v. Thomas, City of Hemet, California, et al., Petitioners v. Thomas, No.04-1374. 545 U.S. 1128 (2005), the court found that an arrestee's conviction for resisting an officer did not bar him from pursuing a federal civil rights lawsuit for alleged excessive use of force against him. The Ninth Circuit federal appeals court, overturning a prior ruling, adopted Model Penal Code definition of "deadly force," but left it to trial court to decide whether the use of a police dog against the arrestee was deadly force in this case.

 On the issue of the definition of deadly force--which the plaintiff arrestee claimed was used against him, the appeals court held that it means "force that creates a substantial risk of causing death or serious bodily injury," a definition that "finds its origin in the Model Penal Code."  "`Deadly Force' means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.

 The Ninth Circuit had, in previous litigation, Vera Cruz v. City of Escondido, #95-56782, 139 F.3d 659 (9th Cir. 1998), another case involving the use of a dog, rejected this definition, concerned that the "or serious bodily injury" portion of the definition would blur the line between deadly force and lesser force. In Vera Cruz, the appeals court ruled that the use of a police dog to subdue fleeing suspect was not the use of deadly force in absence of circumstances under which there was "more than a remote possibility of death."

 In now adopting this definition, and explicitly overturning Vera Cruz, it joined the seven other federal appeals court circuits that have explicitly addressed the issue of how to define deadly force in general. See, Gutierrez v. City of San Antonio, No. 97-50082,139 F.3d 441, 446 (5th Cir. 1998) (deadly force "creates a substantial risk of death or serious bodily injury"); Estate of Phillips v. City of Milwaukee, No. 96-2628, 123 F.3d 586, 593 (7th Cir. 1997) (same); In re City of Philadelphia Litigation, 49 F.3d 945, 966 (3rd Cir. 1995) (adopting the Model Penal Code definition); Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir. 1987) (same); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (same); Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985) (same); Mattis v. Schnarr, 547 F.2d 1007, 1009 n.2 (8th Cir. 1976) (en banc), vacated as moot sub nom., Ashcroft v. Mattis, 431 U.S. 171, 52 L. Ed. 2d 219, 97 S. Ct. 1739 (1977) (same).

 A definition including "a substantial risk of serious bodily injury" is used by police in all fifty states, the District of Columbia, and Puerto Rico, and such use has not resulted in the difficulties we feared. Equally important for this case, it is the definition that California and the Hemet Police Department [the defendant Department] use. Adopting the common definition of deadly force should impose no more of a burden on law enforcement officials than already exists throughout the nation -- a burden that most law enforcement officials have voluntarily chosen to impose upon themselves.

 State v. Smith, 73 Conn.App. 173, 807 A.2d 500 (Conn.App. 10/22/2002)

We agree that the reasonableness of the defendant's belief under ' 53a-22 should be evaluated pursuant to the subjective-objective formulation. Under that test, the jury must first determine whether, on the basis of all the evidence, the defendant in fact honestly believed that deadly force, rather than some lesser degree of force, was necessary to repel the victim's alleged attack. If the jury determines that the defendant honestly believed that deadly force was necessary, it then turns to the second, or "objective," part of the test. Here, the jury's inquiry requires it to determine whether the defendant's honest belief was reasonable.

 At issue was the defendant's training and police training in general regarding the use of deadly force when the court prevented the defendant from introducing evidence that was highly relevant to establishing that his use of deadly force was objectively reasonable according to the "reasonable police officer" standard. The evidence, the defendant argues, would have assisted the jury in analyzing the defendant's state of mind and his conduct…

 Two statutes, '' 53a-19 and 53a-22, authorize the use of deadly force in self-defense. Section 53a-19, the civilian, or nonpeace officer self-defense statute, is entitled "[u]se of physical force in defense of person." It provides in relevant part for the use of deadly force in self-defense, with several relevant exceptions that we note, as follows: "[A] person is justified in using ... deadly physical force [only if] the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm." General Statutes ' 53a-19 (a).

 The use of deadly force by persons other than peace officers is specifically proscribed in other subsections of ' 53a-19. Subsection (b) provides: "Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace office or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform."

 Subsection (c) of ' 53a-19 provides: "Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law."

 Section CGS ' 53a-22, entitled "[u]se of physical force in making arrest or preventing an escape," applies to peace officers. It provides in relevant part: "A peace officer . . . is justified in using deadly physical force upon another person [to effectuate an arrest or to prevent an escape, or to defend himself or a third person from the use or imminent use of physical force while doing so] only when he reasonably believes such to be necessary to:

 (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force." General Statutes ' 53a-22 (c).

We conclude that the test for evaluating self-defense claims pursuant to CGS ' 53a-22 is a subjective-objective test. The jury is required, first, to determine whether the defendant honestly believed that the use of deadly force was necessary in the circumstances. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable police officer in the defendant's circumstances. See Graham v. Connor (1989) (evaluating reasonableness of police officer's belief that deadly force justified in context of fourth amendment excessive use of force claims, stating that "[t]he [objective] 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"); Weyel v. Catania, 52 Conn. App. 292, 296, 728 A.2d 512 (all claims that law enforcement officers have used excessive force in the course of an arrest, whether deadly force or not, should be analyzed under the reasonableness standard of the fourth amendment), cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).

In determining whether expert testimony on the use of force by a police officer is properly admissible under the appropriate standard, we note that "[a]s a general proposition, the 'objective reasonableness' standard may be comprehensible to a lay juror. On the other hand, any 'objective' test implies the existence of a standard of conduct, and, where the standard is not defined by the generic--a reasonable person--but rather by the specific--a reasonable officer--it is more likely that [federal rule of evidence] 702's line between common and specialized knowledge has been crossed." Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993) (analyzing plaintiff's claim that court improperly excluded expert testimony concerning defendant's use of non-deadly force in effecting arrest). In Kopf, the United States Court of Appeals for the Fourth Circuit stated that "[w]here force is reduced to its most primitive form--the bare hands--expert testimony might not be helpful. Add handcuffs, a gun, a slapjack, [M]ace, or some other tool, and the jury may start to ask itself: what is [M]ace? what is an officer's training on using a gun? how much damage can a slapjack do? Answering these questions may often be assisted by expert testimony."

Connecticut General Statutes ' 53a-22, entitled "[u]se of physical force in making arrest or preventing escape," provides in relevant part: "(a) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of physical force to make an arrest or to prevent an escape from custody. A peace officer . . . who is effecting an arrest pursuant to a warrant or preventing an escape from custody is justified in using the physical force prescribed in subsections (b) and (c) of this section unless such warrant is invalid and is known by such officer to be invalid. "(b) Except as provided in subsection (a) of this section, a peace officer . . . is justified in using physical force upon another person when and to the extent that he reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or custody is unauthorized; or (2) defend himself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape. "(c) A peace officer . . . is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force...."

The objective part of the test under Connecticut General Statutes ' 53a-19 requires the jury to measure the defendant's honest belief against the standard of a reasonable person in the defendant's circumstances. State v. Prioleau, 235 Conn. 287. As we will discuss, we agree with the defendant that in addressing the objective part of the test under General Statutes ' 53a-22, however, the standard is that of a reasonable peace officer.

We have described three requirements for showing that a lack of training manifests deliberate indifference. See Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992).

First, to reach the jury, the plaintiff must offer evidence from which a reasonable jury could conclude "that a policy-maker knows 'to a moral certainty' that her employees will confront a given situation." Id. at 297 (quoting City of Canton, 489 U.S. at 390 n.10).

Next, "the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation." Walker, 974 F.2d at 297.

"Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Id. at 298. In addition, at the summary judgment stage, plaintiffs must "identify a specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation." Amnesty Am., 361 F.3d at 129.

Failure to train subordinate municipal employees will trigger municipal liability "only where the failure to train amounts to deliberate indifference to the rights" of members of the public with whom the employees will interact. City of Canton v. Harris, 489 U.S. 378, 388 (1989). In some cases, such as the use of deadly force, the risk to the public is so obvious and so great that failure to train on the applicable constitutional limitations constitutes deliberate indifference as a matter of law. Id. at 390 & n.10. In addition, where municipal employees "in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers," deliberate indifference will be found.

The reader is encouraged to view the Connecticut Deadly Physical Force Reports(CGS 51-277a) on the Connecticut State's Attorney Web Site:

http://www.ct.gov/csao/cwp/browse.asp?a=1802&bc=0&c=18713&csaoPNavCtr=|#42318

...the law requires that the officers belief needs only to be reasonable, and not necessarily correct...Jonathan C. Benedict - State’s Attorney - Judicial District of Fairfield - November 21, 2006


Reginald F. Allard, Jr.

CV


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