6/13/15

By Alexa Gervasi, ACLR Featured Online Contributor

To illustrate the bounds of police use of force, last spring Sergeant Brett Parson1 of the D.C. Metropolitan Police Department pointed an audience of Georgetown Law students to Eric Garner’s case.2 In response to Mr. Garner resisting arrest for selling loose cigarettes on the street corner, an officer, against police policy, applied a chokehold to restrain Mr. Garner. In the struggle, Mr. Garner suffered what police refer to as a “medical emergency” and died. Sergeant Parson explained that, while the officer was wrong to ignore departmental policy, he did not use excessive force in violation of the Constitution. He argued that officers are bound only by the reasonableness test handed down by the United States Supreme Court, and a mere violation of departmental standards is not necessarily unreasonable. In essence, what he proposed is that officers may break the rules, as long as they don’t break the law. Therefore, in the case of Mr. Garner, Sergeant Parson’s point of view is that the chokehold, given the perceived threat to police safety, was a reasonable response, and therefore was not a violation of Mr. Garner’s constitutional due process protections. To accept Sergeant Parson’s argument, you must accept that it is ever reasonable to break the rules.

Sergeant Parson’s assertion, which may come across as an attempt to justify police behavior, does not stem from ill will, but from a lack of clarity in the Supreme Court’s rulings. In the 1985 case of Tennessee v. Garner, the Supreme Court found that deadly force should not be used unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat to the officer or others.3 Subsequent cases, however, have eroded this two-part test. In 2007, the Court in Scott v. Harris held that even where officers could eliminate the threat to society by ceasing their pursuit, the use of deadly force may still be reasonable.4 Where officers are not applying deadly force, the Court in Graham v. Connor instructed police to balance all of the facts and circumstances to determine whether the use of force is reasonable.5 Factors that officers might consider are whether the individual was actively resisting arrest, the severity of his crime, and the threat he posed to the safety of officers and others.6 The officer’s subjective intent, however, is not relevant when reviewing an officer’s decision to use force.7 The Court recognizes that officers are expected to engage in this balancing approach in the height of a struggle or in the midst of an arrest.8

Lacking from these tests, however, is a statement of law enforcement’s purpose. Sergeant Parson, with admirable candor, shared that an officer’s number-one objective for every shift is to make it home alive. Recognizing that officers are underpaid civil servants,9 I understand this objective; however, it cannot be the primary goal against which the reasonableness standard is applied. The goal of law enforcement must be something more, or we will continue to evaluate reasonableness according to a police officer’s subjective fear at a moment of high anxiety. Woven into the analyses of the use of force doctrine is a concern for public safety. It is this standard, protecting the public, that should guide the reasonableness test. To accomplish that goal, the Garner analysis should govern, even where deadly force is not applied.

Applying this proposed test, where an officer seeks to use force, that force must be necessary to prevent escape and the officer must have probable cause to believe that the individual poses a significant threat to the officer or society. Under this test, reasonable action is only that which is necessary to prevent escape, thus limiting the balancing test proposed in Graham. This standard would also reject the ruling in Scott, meaning that police may not exacerbate the risk by continuing a pursuit. If law enforcement’s purpose is set as protecting society, where a suspect might be able to flee, but does not pose a significant threat, the officer should allow the suspect to flee. The Founding Fathers, in constructing constitutional protections, believed that “it is better 100 guilty persons should escape than that one innocent person should suffer.”10 In this same spirit, allowing a police officer to take another’s life with anything less than probable cause of a sincere danger to the public offends the principles of justice and the reasonableness that the Fourth Amendment demands.

We often forget that those accused of committing wrongs are also members of society. They have mothers and fathers and children. They get scared when approached by a group of officers. They are required to make split-second decisions, and they sometimes make the wrong choice. But that does not mean that they do not deserve protection and compassion. Mr. Garner was not armed. He was accused of selling loose cigarettes on a street corner. The chokehold was an action deemed unreasonable by the NYPD, and it certainly was not a necessary move to prevent flight or eliminate the risk to society. Sergeant Parson’s interpretation of constitutional law, though understandable in light of the Supreme Court’s diminished standard of “reasonableness,” does not protect society or constrain officers to reasonable behavior.