Police Use of Deadly Force: What You Should Know

Q: What is the standard of conduct for police officers using deadly force?
A: Police officers must keep the public peace and make lawful arrests. As first responders to active shooting situations, they put their lives in danger to protect the public. In 2015, 124 officers lost their lives in the line of duty. Police officers are trained to make lawful seizures and arrests with the minimum necessary force. However, because difficult judgement calls about the level of force required must sometimes be made quickly and in dangerous situations, police officers can only be prosecuted for a crime if their use of lethal force is an “unreasonable seizure” under the Fourth Amendment of the U.S. Constitution.

Q: Which court sets the legal standard determining whether a police officer who uses lethal force should be charged with a crime?
A:   The U. S. Supreme Court interprets the Fourth Amendment. Every judge, prosecutor and police officer must follow the Court’s ruling that a police officer who has probable cause to believe that the suspect poses a threat of death or great bodily harm to the officer or to the public can use deadly force. The Supreme Court also has ruled that, when considering whether an officer used excessive force, a court must “put itself in the officer’s place” and decide the case based on what the officer knew and perceived at the exact moment of the shooting, and not on what was learned after the shooting. An officer’s use of deadly force must be objectively reasonable based upon his or her training, experience and the facts of the case.

Q:   Who determines whether a police officer should be charged with a homicide offense? 
A:   In Ohio, the county prosecutor will review the facts and determine whether the police officer’s actions constituted an illegal seizure under the Fourth Amendment. A criminal case can be brought against a police officer only if there is probable cause to believe the use of deadly force was improper. In most counties, the prosecutor makes this decision. If the prosecutor determines that the officer’s actions violated the Fourth Amendment, the prosecutor will present the case to the grand jury. Only the grand jurors can decide if state felony criminal charges will be filed against an officer whose use of deadly force was alleged to have violated the Fourth Amendment. 

Q: If the prosecutor determines that a police officer’s use of deadly force was proper and that no crime has been committed, will anyone else review the officer’s actions? 
A: Yes. The police department will conduct an internal review of the officer’s action. If the officer is found to have violated its “use of force” policy, the department can enforce job discipline. Also, federal criminal charges can be brought if a federal prosecutor determines that the police officer’s actions violated the suspect’s Fourth Amendment rights. In addition, the deceased’s family can bring a civil suit seeking monetary damages and alleging that the police violated the deceased’s Fourth Amendment Constitutional rights. A jury will determine, by a “preponderance” (majority) of the evidence, whether the deceased’s Fourth Amendment rights were violated. If the officer is found liable in a civil trial, the penalty is monetary compensation to the deceased’s family and not a criminal penalty.
 
Q: How can a police officer not be charged with a crime when video footage shows that the deceased had no gun and was not a danger to the police when the officer fired a weapon?     
A: Courts have recognized that police officers are trained to respond to certain movements they may interpret as life threatening, even if they have not seen a weapon. If, for example, a suspect threatens to shoot an officer at night and pulls a shiny object such as a beer can from his pocket, the officer may be justified in making a split-second decision to use deadly force because the officer reasonably perceived that his or her life was in danger at that moment. Even if it later becomes clear that the suspect did not possess a deadly weapon and was not a threat to the officer, a court will still evaluate the case based on the officer’s perception of the life-threatening danger at the moment of the encounter.

Q: What steps are being taken to avoid the use of deadly force against an unarmed suspect?
A:   In 2016, each Ohio police officer must attend two hours of professional training on the constitutional use of force, including training in how to use the minimal amount of force necessary to control or arrest a suspect. Because approximately 25 percent of people who die as a result of police shootings are in an emotional or mental crisis, many police departments are also training their officers in Crisis Intervention Training (CIT). When officers learn a person is in an emotional crisis, this training helps them to de-escalate a threatening situation by first talking to the troubled individual and then getting assistance from a mental health professional. 

5/9/2016 

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Copley attorney Philip D. Bogdanoff. 

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

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