One of the most debated topics in criminal justice and law enforcement is the authorization and accountability related to the use of force by police officers. This can have a dramatic impact on the lives of civilians, police officers, and also the overall operation of the United States criminal justice system
In light of recent events involving George Floyd and others, the debate of this topic has again taken to the front page of many news outlets.
What has been realized is that the general public has a strong misconception and misunderstanding of police use of force and the obligations of a citizen.
Prominent “Use of Force” SCOTUS Cases
We will start the discussion with one of the most prominent police use of force cases that dates back to 1985 when the United States Supreme Court decided a case of Tennessee v. Garner, 471 U.S. 1 (1985).
Tennessee v. Garner, 471 U.S. 1 (1985): In the Garner decision, the United States Supreme Court ruled that police use of deadly force violates the 4th Amendment prohibition against unreasonable seizures unless the suspect poses a threat of serious harm to the officer or others. The Garner decision left a lot of unanswered questions regarding the use of force and when it would be deemed appropriate so – four years later – the Supreme Court clarified the matter in Graham v. Connor, 490 U.S. 386 (1989).
Graham v. Connor, 490 U.S. 386 (1989): The United States Supreme Court in Connor gave a level of clarity to the Garner decision when they declared that all uses of force that occur at any point in an interaction between police officers and civilians would be governed by an objective reasonableness standard.
The “Reasonableness” Standard
The “reasonableness” standard can be found and many areas of jurisprudence that stems from the 4th amendment of the United States Constitution. However, when applied to a use of force by a law enforcement officer against a civilian, the Supreme Court found that among the primary relevant circumstances that should be assessed in order to attempt to gauge the officer’s reasonableness would be:
- The seriousness of the crime at issue;
- Whether the subject or potential perpetrator was actively resisting arrest or attempting to flee; and
- Whether the suspect posed an immediate threat to the safety of the officers or others.
“Use of Physical Force”
From the Graham decision until today, many states used the guidance from the Supreme Court to enact their own use of force provisions. For example, in New York, Penal Law Section 35.30 governs when a police or peace officer may use physical force.
New York Penal Law §35.30
Penal Law Section 35.30 states that a police officer (or a peace officer) may use physical force – to the extent necessary – when he or she “reasonably believes” that such force is necessary to:
- effect an arrest;
- prevent escape;
- in self-defense of the individual officer or another officer; or
- to defend a third-party civilian.
When we begin to assess some of the interactions between police officers and civilians and engage in the debate of what is reasonable – which is a clear standard on both the state and federal levels for assessing the use of force – we have to take into account:
- who the individual is;
- who has used the force; and
- include any information that we may have about not only the suspect’s background but also the police officer’s background in history.
Police Chokeholds in New York
N.Y.C. Police Department’s Complete Ban on Chokeholds Has Been in Place Since 1993
As we begin to attempt to dissect the reasonableness of the use of force, it is important that we also take the following fact into account.
In 1993, The New York City Police Department explicitly banned the use of any form of a chokehold in detaining a defendant or suspect without exception.
However, despite the ban that is almost thirty (30) years old, New York has seen:
- The Anthony Baez Case: Where a motorist was stopped, an altercation ensued, and that individual was ultimately killed while also using a chokehold.
- The Eric Garner Case: We also were unfortunate enough to witness the video of Eric Garner – who was suspected of selling loose cigarettes (which violated New York State cigarette tax laws) – who was choked to death by a police officer while he repeatedly said that he could not breathe.
“The Eric Garner Chokehold Ban” – NYPL §121.13(a)
In the name of Eric Garner, New York State finally enacted the New York Penal Law Section 121.13(a) in June of 2020. New York Penal Law 121.13 came on the heels of nationwide protests in almost every city in the United States and established a C–level felony, which is classified as aggravated strangulation when a police officer or peace officer uses a chokehold to execute an arrest.
First Prosecution of Eric Garner Chokehold Ban
Despite the continued protest and political debates – as well as the deaths that we have watched – a few days after the enactment of the Eric Garner chokehold ban, New York City police officer David C. Evans can be seen on a video choking Ricky Belleville until Mr. Bellville became unconscious and another police officer had to remove the officer from Mr. Belleville’s neck.
Officer Evans will now be the first New York City police officer charged under the Eric Garner chokehold ban with aggravated strangulation – which carries a maximum sentence of up to fifteen (15) years.
When we look at the Eric Garner, George Floyd, or even the Ricky Belleville case, what you can find is that a large segment of the public nationwide are under the belief that police officers have an absolute right to detain and arrest any individual when they deem fit.
However, individuals maintain certain First Amendment protections…
First Amendment Protections
1. Interacting with Police Officers and Public Officials Generally
Mr. Belleville’s case is reported as having been a verbal dispute between Mr. Belleville, his friends, and a group of police officers. At some point, Mr. Belleville is recorded as having said, “are you scared?” and, “you can’t tell me where to go,” to the group of police officers.
Many people were under the false belief that the conversation between Mr. Belleville and the police officers justified the officer attempting to arrest Mr. Bellville.
Some people also believe that when the officer made the attempted arrest of Mr. Belleville, Mr. Belleville was mandated to be fully compliant. However, our case law in the United States in general and, more specifically, in New York, takes a different stance on these situations.
Many of the comments and actions that are made by individuals to police officers, including the videotaping of police and civilian interactions, whether we agree with them or not, or whether we find the conduct offensive or annoying, are all protected by the 1st Amendment of the United States Constitution – which prohibits a law enforcement officer or any government official from penalizing the individual for exercising those rights.
2. “Verbal Criticism” directed at Officers is Protected by the First Amendment
City of Houston v. Hill, 482 U.S. 451 (1987): For example, in a case titled City of Houston v. Hill, 482 U.S. 451 (1987), which was heard by the United States Supreme Court in 1987, Raymond Hill is reported as having told the officer, while the officer was arresting his friend, “why don’t you pick on someone your own size?” The officer, in turn, attempted to arrest Mr. Hill and a brief scuffle ensued. Acknowledging the comment that Mr. Hill had made to the police officer, the United States Supreme Court said that the First Amendment protects a significant amount of verbal criticism and challenges directed at police officers.
3. “Flipping-the-Bird” is Protected by the First Amendment
Swartz v. Insogna, 704 F.3d 105 (2d Cir. 2013): In the more recent case of Swartz v. Insogna, 704 F.3d 105 (2d Cir. 2013), the Second Circuit was asked to address an issue that stemmed from a civilian flipping an officer, what some call a bird or, in other words, showing an officer a middle finger – which implies the commonly found derogatory statement “F*** Y**.” In Swartz, the court found, without much discussion, that flipping a bird at an officer is protected by the 1st amendment. So, that did not give the officers ground to arrest summons or penalize the defendant in that case.
Thirairajah v. City of Fort Smith, 925 F.3d 979 (8th Cir. 2019): In the case of Thirairajah v. City of Fort Smith, 925 F.3d 979 (8th Cir. 2019), a defendant was reported as having yelled “F*** Y**” out of his car to an Arizona State trooper. When reviewing that case, the 8th Circuit Court of Appeals found that the criticism of law enforcement officers, even with profanity, is protected by the First amendment.
People v. Stephen, 153 Misc. 2d 382 (NY Crim. Court, 1992): The New York case of People v. Stephen, 153 Misc. 2d 382 (NY Crim. Court, 1992), involved an allegation that an individual groped his own genitals while cursing at an officer. The court in Steven’s found that also was protected by the First Amendment.
4. “Using Profanity” Towards A Police Officer is Protected by the First Amendment
A lot of the instances where we have seen situations escalate between officers and civilians usually involve a civilian criticizing a police officer and, in some cases, using profanity – either in word or gesture – directed at a police officer.
Courts across the country have repeatedly said that in general, the criticisms and many levels of profanity used against a police officer who is a public official is protected by the 1st Amendment.
The reason for that is that the courts have deemed that police will encounter vulgarities with some level of frequency, but that the police officers professional training will enable them to defuse a volatile situation without physical retaliation or force. The words that may provoke a violent response from the average citizen should not provoke a police officer who is a trained professional.
So, in many instances when we have seen members of the public in an uproar from verbal interactions that turned into events where civilians were badly injured and, in some cases, deadly altercations, the public has to be reminded that a police officer is a government official should be held to a higher standard.
Each year the governments allocates billions of dollars to finance training programs for police to be able to de–escalate these types situations.
Most importantly, the public has to be mindful of the fact that although we may not agree with the terms used by the individual, or the gestures directed at the police officers, that civilians maintain a First Amendment right to criticize public and government officials, even when it includes the use of profanity.
Another point that we must heavily consider when assessing when force is being reasonably used is the level of resistance involved by the individual, and whether that’s deemed illegal and actionable.
Gauging the Level of Resistance: Illegal or Actionable?
In approximately fourteen states out of the fifty, citizens are not allowed to use force to resist arrest but may resist an unlawful arrest. Alabama, Georgia, Louisiana, Maryland, Michigan, Mississippi, New Mexico, New York, North Carolina, Pennsylvania, South Carolina, Virginia, West Virginia, and Wyoming all have resisting arrest statutes that consider the lawfulness of the arrest as a predicate that is necessary to a finding that the defendant or suspect resisted arrest.
When Can You Lawfully Resist Arrest in New York?
One example may be an individual who exercised his Constitutional right by yelling vulgarities at a police officer or public official. If an officer then attempts to arrest this individual, the individual may lawfully refuse to comply with putting their hands behind their backs and can continue to voice objections – so long as they do not assault the officer (because the unlawfulness of an arrest is not an affirmative defense to assaulting a police officer.)
Resisting Arrest – NYPL Section 205.30
New York Penal Law Section 205.30 says that a person is guilty of resisting arrest when he or she intentionally prevents – or attempts to prevent – a police officer or peace officer from effecting an “authorized arrest” of himself or a third person.
What is an “Authorized Arrest” in New York?
People v. Maldonado, 86 N.Y.2d 631 (1995): When considering when an arrest can be deemed authorized, the New York State Court of Appeals in People v. Maldonado, 86 N.Y.2d 631 (1995), held that an authorized (legal) arrest is defined as an arrest where a police officer has reasonable cause to believe that the person being arrested has committed a crime. A crime does not include expressing protective protected speech.
Next, we must consider what “reasonable cause” means.
This is especially important when evidence or information exists that appears to be reliable and discloses facts or circumstances which would convince a person of ordinary intelligence, judgment, and experience, that it is reasonably likely that a crime was committed.
New York’s “No Sock Law” – NYPL Section 35.27
New York’s “No Sock law” was enacted with the idea that the legitimacy of an arrest should be settled in a court of law, not by force and violence on the streets.
For that reason, New York and other states enacted so-called “no sock” laws, which made it a crime to use physical force to resist arrest.
New York Penal Law Section 35.27: Justification; use of physical force in resisting arrest prohibited. A person may not use physical force to resist an arrest, whetherauthorized or unauthorized, which is being affected or attempted by apolice officer or peace officer when it would reasonably appear that thelatter is a police officer or peace officer.
Basically, New York’s “No Sock law” means is that an individual does not have a right to assault an officer, whether the arrest is authorized or unauthorized. The case law in New York has described circumstances and levels of resistance to an unlawful arrest that is deemed acceptable.
People v. Jones, 90 N.Y.2d 835 (N.Y. 1997): For example, in People v. Jones, 90 N.Y.2d 835 (N.Y. 1997), the New York State Court of Appeals dismissed a resisting arrest charge based upon an individual fleeing from police because the underlying charge of disorderly conduct was not legally substantiated.
US v. Goines, 604 F Supp. 2d 533 (EDNY, 2009): In the case of US v. Goines, 604 F Supp. 2d 533 (EDNY 2009), the Federal District Court for the Eastern District of New York clarified the definition to the “No Sock law” by describing the level of resistance acceptable when a civilian is faced with an illegal arrest. The court held that when a “defendant who is the subject of a wrongful seizure is holding his hands under his body after being tackled by police and trying to move around to avoid being handcuffed – that did not constitute physical force or resisting arrest.
The reason why these cases are very important in assessing the level of force that is in fact “reasonable” stems from having witnessed some of the public comments related to an officer having kneeled on the neck of George Floyd for 8 minutes and 46 seconds. Members of the public have been responding to this video by asking, “Why was he resisting?” – as if any level of resistance justifies all levels of use of force and in that case deadly force.
That is not legally true.
Another issue that we commonly see that becomes a point of contention when assessing when “force” is appropriate and when “deadly force” should have been used is circumstances where we see a video or receive reports that an individual who was initially unarmed and non-violent began to scuffle with police.
We have seen these videos used as justification for the use of deadly force.
So, it’s important that we also consider whether any use of physical force under any circumstances in an interaction involving a law enforcement officer and a civilian can ever be justified.
Can Civilians Use ‘Reasonable Force’ Against a Police Officer?
In considering whether an initially non–violent civilian is authorized – under the law – to use the reasonable force necessary to protect themselves from injury and possibly death, we’re going to review some of the case law.
People v. Sanza, 37 A2d 632: We’ll begin with People v. Sanza, 37 A2d 632, which was decided in 1972 by the Appellate Division, 2nd Department, for the State of New York. In Sanza, the appellate division was asked to review whether the trial court made an error in failing to charge the jury with a justification defense and allow them to consider whether Mr. Sanza was justified and using a reasonable level of force to repel an unjustified physical attack by police officers.
The court in Sanza ruled that it was error for the trial court to refuse to charge the jury with the defense of justification where the evidence permitted an inference that the defendant was the victim of (1) an unprovoked police assault or (2) the use of excessive force to effectuate the arrest.
People v. Pritchett, 298 A2d 411: In a more extreme case, the Appellate Division, Second Department in People v. Pritchett, 298 AD 2D 411, was again asked to consider the question of whether a civilian was legally authorized to use force to repel an attack of excessive or unprovoked force used by police officers. Pritchett was a parolee in New York living with his wife and police officers were summoned to Mr. Pritchett ‘s home. During the police officers’ time in Mr. Pritchett’s home, a gun battle ensued between Mr. Pritchett and the police officers which resulted in both Mr. Pritchett and police officers being shot – luckily, no one died from this gun battle.
Once again, the appellate division was asked the question of whether Mr. Pritchett was entitled to a charge of justification in order to allow the jury to assess whether Mr. Pritchett was right in using an illegal firearm to repel what could have been a deadly attack by police officers that was either excessive or unprovoked. In Pritchett, the court found that the trial judge was an error for failing to charge the justification defense to the jury and by not allowing the jury to assess whether Mr. Pritchett was justified in his condo – even though the weapon that he possessed was illegal.
State v. Mulvihill, 57 NJ 151 (1970): In a case of State v. Mulvihill, 57 NJ 151 (1970), the court held that if – in the course of effectuating an arrest or temporary detention – the officer employs excessive force or unnecessary force, the citizen may respond or counter with reasonable force to protect himself and, based upon that decision, Mr. Reed’s conviction for assault on a police officer was reversed in 2017.
In light of the various areas of law that are covered here, the fact that not all comments or objections made to a police officer is an actionable offense, and that civilians do not lose their right to utilize reasonable force to repel unwarranted physical attacks by police officers, we must change our view of what force is deemed appropriate and permissible by our law enforcement officers.
Clashes between civilians and police officers have left civilians (as well as police officers) brutally injured and dead. Some of these instances were unjustified from the inception and only spiraled out of control to create unnecessary harm to all parties involved. This goes beyond the First Amendment.
In considering what level of force is acceptable and when to legitimately hold police officers accountable, we also have to consider the impact that unchecked uses of force have on a perpetrator or suspect exercising his or her constitutional rights in other areas of law beyond the First Amendment. Let’s look at the Fourth Amendment.
For example, as previously stated, any rights that stem from the 4th amendment of the United States Constitution usually have a “reasonable person” standard applied.
So, if an individual is approached by police and is asked to consent to a search, the question of whether the search was legal and/or consented to by the individual is going to hinge on the fact of whether a ‘reasonable person’ under the same or similar circumstances would have believed that they didn’t have to consent and/or that they were free to go.
What Should Courts Consider?
What courts do not consider when making these separate 4th Amendment assessments is the level of violent clashes between police officers and civilians which would make a reasonable civilian err on the side of complying even when their constitutional rights are at risk.
In most instances, the primary question for the court is – under the circumstances of the stop or interaction – whether a reasonable person would have believed that they were free to go and or in custody.
In many cases, our position has unfortunately been to advise the clients to fully comply with officers demands – whether they believe that the arrest is authorized or not – and to do their best to never use any level of force against law enforcement officers (even if the interaction turned violent at the officers’ instigation.)
While we believe that this is the best course of action to prevent physical injury to our potential clients – as well as law enforcement officers – we do understand that this has compromised the constitutional rights of many of our clients and it has taken years and litigation in order to vindicate those rights.
The arguments going forward regarding police accountability and the repeal of “qualified immunity” – which has been used to justify even instances of officers stealing large sums of money from defendants – has gone too far which has created an overall criminal justice system that is become extremely divisive.