Understanding Police Authority

This article consists of basic case law to help people understand the authority the police operate within.  The purposes are to help people understand what the police can do to prevent people from getting themselves into trouble when they interact with police, and to better interpret the news they see concerning the use of force by police.

About two years ago there was outrage about the arrest of a woman named Sandra Bland who was forcibly removed from her vehicle after refusing an officer’s order to exit the vehicle.(1) The woman was arrested for resisting or obstruction and was found hanged in her cell shortly after being taken into custody.  News outlets covered the event and developments through a lens that would maximize attention by implying officer wrongdoing through the coverage.

1: https://www.youtube.com/watch?v=y9t1N2wRvjc

I thought about how the woman’s life would have been saved if she understood the case of Pennsylvania v. Mimms.(2)  Instead of the media bringing this simple piece of case law to the public which could have saved the woman’s life, and benefited millions of viewers, the media chose to beat the drum of negative public perception against the police.  Why didn’t the media inform?  The media doesn’t earn money for telling the truth.  The media earns money by attracting attention for their advertisers.  To inform the public about Pennsylvania v. Mimms shows that the officer was lawful in ordering Sandra from the car despite only being pulled over for a failure to signal.  People don’t want to hear about the police being right, they want stories that will reinforce the negative ideas they already have about the police.

2: https://www.oyez.org/cases/1977/76-1830

The Supreme Court ruled in Pennsylvania v. Mimms that a law enforcement officer during a traffic stop can have every person in the car exit the vehicle for the officer’s safety, even if it is for a failure to signal.  If Sandra knows this law she likely does not resist the officer when he gives her a lawful order to exit the vehicle.  Sandra’s behavior is a product of her believing the officer was doing something wrong.  There are countless incidents where people are pulled over for minor violations that would otherwise result in warnings or citations. These minor violations become serious charges because the suspect refuses lawful orders and then resists arrest and force is applied to gain compliance.  The public reads a headline pulled over for failure to signal and watches someone being hit and dragged out of a car.

Another important SCOTUS ruling is Terry v. Ohio which establishes reasonable suspicion for officers to detain and search citizens.  Reasonable suspicion is a reasonable belief that a person has committed a crime, is  committing a crime, or is about to commit a crime based on the totality of the circumstances.  The ruling also authorizes an officer to conduct an outer pat down for weapons if there are articulable facts that suggest the person is carrying a weapon.

The reason I mention this case and the standard of reasonable suspicion is because oftentimes people who have a negative opinion of police will be non-compliant when the officer has reasonable suspicion to detain and question them.  This non-compliance can often lead to the person committing a crime when they would otherwise be free to go after the officer establishes their identity.(3)

3: International Association of Chiefs of Police, September 2019, “Arrests and Investigatory Stops”. https://www.theiacp.org/sites/default/files/2020-06/Arrests%20etc.%20June%202020.pdf

You’re not compelled to answer any questions during an investigative stop but you must comply with requests for identification.  There are times when a person being detained will refuse to provide the officer identification because they haven’t done anything wrong.  However, refusing to provide identification during an investigative stop when an officer has reasonable suspicion is obstructing his investigation, and then you have done something wrong.  If a person refuses to provide identification they can be arrested for obstruction.  The officer will inform the suspect that they’re under arrest for not providing identification and the suspect will resist arrest.  Why?  Because they don’t know the law.  Now, instead of providing the officer your identification and being free to leave you’re going to jail for obstruction and resisting.

If you’re the subject of an investigative stop this does not in itself provide reasonable suspicion for a search.  If the officer asks to search he may not have reasonable suspicion for the search and can only search you if you give him consent.  However, the officer may have reasonable suspicion to search you and if he does you must allow him to search.  If an officer asks to search you and you’re unsure if it is a consensual search or a search based on reasonable suspicion you can ask.  Are you asking for my consent to search or is this a search based on reasonable suspicion?

If after the encounter you doubt the officer had reasonable suspicion for either the search or the stop the officer has to create a report about the stop.  You can access and determine for yourself if what the officer observed meets the definition of reasonable suspicion.  If you believe the officer did not have reasonable suspicion to detain you, you can take action against the officer and or department for unlawful detention.  In nearly every situation where an officer is making an investigative stop, before the officer even makes contact with you he knows the basis for the stop meets the definition of reasonable suspicion.

Public opinion pertaining to the use of deadly force by police is often rooted in ignorance of the law.  Usually also rooted in ignorance surrounding the circumstances and facts of the event.  People want to see the 10 seconds that make it appear that law enforcement was unjustified in the use of deadly force, not the 20 minutes that shows that deadly force was justified.

Often that 10 seconds used to create the public indictment and what was omitted is a justifiable use of force based on Tennessee v. Garner. (4)

4: Justia US Supreme Court 1985 “Tennessee v. Garner” https://supreme.justia.com/cases/federal/us/471/1/

Tennessee v. Garner establishes that an officer can use deadly force against a fleeing suspect when the officer has probable cause to believe the suspect poses a threat of death or serious physical harm to others.  Where is this applicable?  If for example a suspect robs a store and shoots someone and then runs from police, those acts would be sufficient probable cause that the suspect poses a threat of death or serious physical injury to others.  The public sees a video where a suspect is running from police with a gun and is shot in the back and thinks they shouldn’t have shot him.  Then when the officers are not charged or the officers are acquitted if some politically motivated DA does charge the officers they think it is injustice without knowing the law.  Often without knowing more than a 15 second clip showing the suspect running and being shot.

I personally have about half an issue with this ruling because it is not true to context.  For example, if a person shoots someone who he has personal anamosity with, the police see him and he runs, the act of him shooting that person can be probable cause that he is a threat of death or serious physical injury to the public, because he just shot, attempted to murder, or murdered someone.  The act itself does not automatically make him a threat of death or serious physical injury to the public if he evades apprehension, because he was motivated by specific circumstances to harm the victim, and has no motive to harm other members of the public.  The same as mentioned in the example above, where an armed robber who shot a clerk may have had very specific reasons for shooting the clerk.  Perhaps the clerk tried to grab his gun.  In that scenario he is not a person who would have even shot the clerk much less harmed other members of the public if allowed to escape, but the fact he shot the clerk creates probable cause that he is a threat of death or serious physical injury to the public, and could be shot if he flees.

There is no solution for this problem.  Law enforcement is tasked with protecting the public from people who have proven they are dangerous through a violent felonious act.  Therefore those who commit serious violent felonies invite the risk that they will be perceived as a threat of death or serious injury to the general public, and may be shot if they attempt to flee.  In this, a person can avoid being the victim of deadly force by not attempting to flee apprehension if they have committed a violent felony, or not committing a violent felony at all that could give rise to probable cause that they are a danger to the safety of the general public.  If potentially dangerous felons are allowed to escape because of doubts concerning the motivation of their violence, whoever they kill or injure have nothing they can do to avoid being a victim.

There are people who will watch a fleeing suspect with a gun be shot by police and object to the shooting because the suspect wasn’t pointing the gun.  They will say they don’t care what happened before because at the time he was shot he was not a threat to anyone.  What they don’t know is that what they did before they are shot while running with a gun probably justifies the shooting based on the Tennessee v. Garner ruling.  While this is not perfect,  it does serve the interests of protecting the public from dangerous people.

More importantly, and part of the reason for this article is for the public to know what they have a problem with.  If you work at a hotel and the hotel has a policy requiring a customer to put down a $100 deposit, does the customer have a right to be mad at you about that policy?  The same applies to a lot of grievances concerning the use of force by law enforcement officers, where there isn’t much basis for issues with how force is applied without addressing the rules governing the use of force.  Most people who claim concern prove their lack of concern by not learning the law.

Graham v. Connor establishes the standard of objective reasonableness in the use of police force.(5)  This basically means that the use of force has to be considered based on what the officer is trying to accomplish and is perceiving in the moment, not retrospectively.  The plaintiff in the case was diabetic and had a friend take him to a store to purchase orange juice to elevate his blood sugar.  The line was long and Graham exited the store abruptly after entering it.

5: Lance J. LoRussso, 5/23/2019 “Graham v. Connor: THree Decades of Guidance and Controversy”.  https://www.police1.com/officer-shootings/articles/graham-v-connor-three-decades-of-guidance-and-controversy-uqgh9iY6XPGTdHrG/

The officer observed Graham enter the store and quickly exit, get into the vehicle, and speed off from the store.  Officer Connor pulled the vehicle over because the circumstances of observing Graham enter the store, leave the store quickly in a haste, enter a car and speed off from the store creates reasonable suspicion that a crime (robbery) had just occurred.  The officer detained Graham and the driver until he was able to resolve this suspicion which resulted in Graham sustaining injuries.

In hindsight a person may think that the officer should have given more credence to Graham’s condition, but in the moment, acting as a law enforcement officer his actions were reasonable.  To detain the subjects to contact the store and resolve his suspicions.

There are a lot of times when police mistake objects that are not weapons as weapons and use deadly force in response to these objects.  The media often emphasizes that the person was shot while holding a phone or some other object and did not have a weapon.  These shootings are often justified because in the moment and in consideration of the circumstances an officer is responding to, a reasonable officer would make the assumptions that justify the use of deadly force.

I think the best way to understand objective reasonableness is to put yourself in the officer’s position at the moment, including what he believes about the situation and what he must accomplish in the situation.

Another case ruling governing the use of force is Plumhoff v. Rickard. (6)  The ruling applied to the use of deadly force against suspects whose actions posed a grave risk to public safety during a police chase.  Rickard led officers on a high speed chase that led to a parking lot.  Rickard tried to flee again from the parking lot and the officers fired 15 shots killing Rickard and the passenger.  SCOTUS ruled that deadly force was justified because Rickard’s actions posed a grave threat to public safety.  Justice Samuel Alito also wrote that the amount of times the officers fired was not excessive because “officers are justified in using deadly force against a suspect in order to end a severe threat to public safety and need not stop firing until the threat has ended.”

6: https://en.wikipedia.org/wiki/Plumhoff_v._Rickard

This is another case to keep in mind when reaching conclusions as to whether police were or were not justified in the use of deadly force.

One last case I want to make people aware of is Rodriegez v. The United States. (7)  I came across this case when researching a defense for what began as 6 cases in Florida in 2018 which was felony possession of THC concentrates, felony Maintaining a Public Nuisance Structure for Drug Activity, misdemeanor possession of marijuana, and 3 counts of  possession of THC paraphernalia in Florida in 2018.  It wasn’t applicable but until I saw the dash cam footage I thought it was.  Rodriguez v. United States prohibits the delay of a traffic stop for a K-9 unit to arrive to perform an open air sniff.  During  a traffic stop an officer has to be actively engaged in completing the processes related to the stop.

7: Rodriguez v. United States, October 2014 SCOTUS https://www.supremecourt.gov/opinions/14pdf/13-9972_p8k0.pdf

For example, if an officer pulls you over for not wearing your seatbelt he is allowed to ensure that your license, registration, and insurance is in order and then complete whatever paperwork is required for how he is going to enforce the violation.  If at any point during the stop he isn’t doing any of these things this unnecessary delay is an unlawful detention.  If the stop is prolonged for the purpose of a K9 unit arriving, the dog alerts, and you have controlled substances in the car it would be considered an illegal search and seizure because the officer does not have reasonable suspicion to investigate anything other than what you’ve been pulled over for.

Of course if you have controlled substances in plain sight or your vehicle smells of a controlled substance this in itself is probable cause or reasonable suspicion for the officers to search.