A Lesson From The Day Job

I don't talk about specifics from my day job very often. Here especially, and only rarely on my personal blog. I work in the insurance claims industry handling high exposure and litigated commercial liability claims. From time to time, I get assigned to handle claims involving the use of firearms in one form or another. It can be anything from a security guard discharging a gun in self defense to drug deals gone bad to drive by shootings and more.

Yesterday, a claim was assigned to me involving a tragic set of facts. I won't go into too much detail because anyone with more than novice Google Fu skills could probably track it down without too much trouble. Long story short and the lead in to the point of this post, a police officer had to shoot two dogs that had attacked someone.

I was able to meet with my insured this afternoon, and (unusually) there is security video of the event including the shooting. On the plus side, I get to see what happened and when. On the negative side, the incident happened more than 25 yards from where the security camera was mounted making details a little fuzzy (literally).

While I do not know what caliber the officer used, I feel pretty confident in assuming it was some flavor of Glock or Sig 9mm as the majority of the departments in my area issue either Glock 17s or Sig P226s in 9mm. I mention this only to say that the make and caliber of the gun are likely irrelevant given what I saw in the video.

Quick warning to the squeamish, I am about describe what I saw which resulted in the deaths of two dogs. I am a dog lover, and I had to watch it. So, I will do my best to mitigate the imagery.

The officer shot the first dog from a distance of about 5 yards. The first shot was not a killing shot, and the dog started spinning around very quickly. Now, I'm not going to fault the officer for failing to kill the dog on the first shot. I wasn't there, I don't know the officer's experience, etc. What my point here is that the response of the dog to the first shot made all subsequent shots much harder. The second dog, seeing what happened to dog number one, became very agitated and started a spin cycle of its own. I could not tell how many rounds were fired; however, I didn't see a reload involved. So, less than 17 is a safe assumption.

Here are the lessons I would like to offer up in light of this video.

1) Shot placement is everything. Make it count because you might only get one chance. It does not matter how fast you shoot or what caliber you use if you miss the target. Conversely, caliber (within reason) does not matter if you hit the target.
2) Moving targets are harder to hit. This should be self evident to most people, but it bears repeating.
3) Movement buys you time. In this case, the dog could potentially have survived the first shot had it had an avenue of escape and run away. In the self defense context, it's better to be a moving target than a static target.

NEW USE OF FORCE RULING BY THE UNITED STATES SUPREME COURT: KINGSLEY V. HENDRICKSON

By Jerry Cooper

Use of force by law enforcement is a hot-button issue right now.  So, for those who may be interested, the United States Supreme Court issued a very important ruling this month (June 2015); however, unlike the highly publicized street-level law enforcement use of force incidents that have played out over and over on our TV’s to a fever pitch, this ruling (Kingsley v. Hendrickson) addresses the use of force on pretrial detainees.

First, a little history:

Up until 1989, use of force against a person at liberty (i.e., not yet in custody) was considered a 14^th Amendment issue.  If you remember your high school civics, then you will recognize the 14^th Amendment as the one dealing with what is called “due process.”  In 1989, however, the U. S. Supreme Court changed everything with their ruling in Graham v. Conner.  This is the ruling that created the Objective Reasonableness Standard.  The Supreme Court reasoned that since use of force by law enforcement is not a subjective inquiry into the officer’s state of mind, then the officer’s actions are not a 14^th Amendment issue, but rather a 4^th Amendment issue.  The 4th Amendment addresses seizures of persons and property.  A 1991 Supreme Court case (California v. Hodari D.) defines “seizure” as either 1) an officer applying actual physical force to a person, or 2) a person submitting to an officer’s “show of authority.”  A use of force, whether lethal or not, is a seizure of a person. 

One thing the national news media has not learned, and does not want to know, is that an officer’s pre-seizure conduct is irrelevant, and as such, is not subject to 4^th Amendment scrutiny. 

So, as of 1989, there were three separate standards for use of force by law enforcement and detention officers.  As discussed above, in the process of seizures, we had the (4^th Amendment) Objective Reasonableness Standard. 

In post-arrest, but pre-conviction (i.e., awaiting trial) cases, we had the (14^th Amendment) “Shocks the Conscience Standard.”  This standard required complainants to prove more than objective reasonableness.  Plaintiffs must show that force was used maliciously and sadistically to cause harm; it required the courts to look into the officer’s subjective state of mind.   The Supreme Court allowed the various U. S. Circuit Courts of Appeal much flexibility in passing judgment in these cases.

And finally, there was the post-conviction Cruel and Unusual Punishment Standard of the 8^th Amendment in which the petitioner had to prove obduracy and wanton infliction of pain.

As of this month, the post-arrest/pre-conviction Shocks the Conscience Standard of the 14^th Amendment no longer exist.  Use of force against these pretrial detainees now falls under the (4^th Amendment) Objective Reasonableness Standard.  This ruling in effect raises the reasonableness-bar for law enforcement and detention personnel when using force against pretrial detainees.

The lawsuit resulting in the Court’s decision stemmed from an incident in which Michael Kingsley was awaiting trial.  Kingsley had placed a piece of paper over a light fixture in his cell.  Detention officers pleaded with Kingsley for hours to remove the paper, but Kingsley refused.  Finally, detention officers and a deputy sheriff entered Kingsley’s cell and ordered him to stand and put his hands behind his back so they could handcuff him and move him to a different location.  Kingsley refused, so the officers forcibly handcuffed him and removed him from his cell.  After being moved to another cell, Kingsley then refused to let the officers remove the handcuffs.  Officer Hendrickson directed another officer to TASER Kingsley.  The officer then touched the TASER to Kingsley for the usual five-second TASER cycle.  Officers were then able to remove the handcuffs.  Kingsley filed a lawsuit alleging that the force was excessive.  In this case, the Federal District Court judge, and then the U. S. Court of Appeals for the 7^th Circuit applied the (8^th Amendment) Cruel and Unusual Punishment Standard, and both courts ruled in favor of the officers.

When this case reached the U.  S. Supreme Court, however, the Court took away the post-arrest/pre-conviction discretion of the U. S. District and U. S. Courts of Appeal in such matters.  The Court held that a pretrial detainee does not have to prove the defendant officer’s subjective state of mind, but need only prove that the use of force was objectively unreasonable as per Graham v. Conner. 

As circumstances in detention facilities are different from those encountered by law enforcement officers on the street, the Court expanded what is known as the “Graham factors” for these situations.  The Court wrote: “Considerations such as the following may bear on the reasonableness or unreasonableness of the force used:  the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the treat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”

Use of force involving convicted prisoners continues to fall under the 8^th Amendment’s Cruel and Unusual Punishment analysis.