Saturday, January 17, 2015

PROSECUTING POLICE OFFICERS


Recently the media has publicized a number of cases involving violent encounters between police officers and citizens. The stories follow a uniform pattern: Officer encounters citizen who either is involved in criminal activity or is wrongly believed to be involved in criminal activity. Citizen ends up dead or seriously injured. The officer is “exonerated” by grand jury, prosecutor, or petit jury. The officer is perceived to have “gotten away” with committing a crime. Anger wells up over the perception of [racial][ethnic][religious][sexual orientation] prejudice on the part of police and the criminal justice system.

I know firsthand that such prejudice sometimes plays a part in these episodes, but I will argue that it does not play a pervasive part. I will also argue that when such prejudice plays a part, that part is often very much at odds with the public perception we see reported in the media. In making these arguments, I will also attempt to answer the question “Why do police officers ‘always’ seem to ‘get away’ with killing or injuring citizens?”

As far back as 2,500 years ago philosophers and advocates came to understand that criminal cases were not decided on strictly logical grounds, that character and emotion were near impossible to separate from the decision of such cases. Early writers on trial advocacy took this fact into account when they divided criminal cases into four basic types: honorable, dishonorable, doubtful, and trivial. Having been a prosecutor for 30 years, I will discuss these four types of cases from the vantage point of the prosecution.

In an honorable case, all the intangibles of character and emotion are on your side of the courtroom. Example: An escaped prisoner kidnaps, rapes, and murders a young mother who was on her way to the supermarket to buy formula and diapers for her newborn child.  When you prosecute such a case you are on the side of the angels and you are prosecuting the spawn of Satan. If you’ve got good evidence of guilt, you’ve got a winner.

In a dishonorable case, all the intangibles are against you. Example: A father complains that his child has been sexually assaulted and the police seemingly do nothing. The father confronts the suspect, the suspect insults the father, and the father beats the suspect to death with his bare hands. Don’t be surprised if the father escapes punishment. As you can see, the prosecutor’s honorable case is the defense attorney’s dishonorable case, and vice versa.

Most cases fall into the doubtful category. The intangibles fall more or less evenly on both sides of the courtroom. Example: Two inebriated young men have a difference of opinion over who is going to drive the car home from the barroom. They exchange angry words, and the verbal altercation degenerates into fisticuffs. One of the men ends up dead. The defendant really shouldn’t have killed the victim, but the victim contributed heavily to the situation which resulted in his death. You may be able to obtain a conviction in such cases, but then again you may not.

The fourth category, trivial, describes a case in which it is difficult to find moral turpitude on either side. Example: In Florida, it is a felony to build a public building with exterior doors which only swing in. The reason for this is that in case of a fire, the crowds of people trying to escape the fire will oftentimes push against the exterior door in an attempt to escape. If the doors only swing in, they may get trapped because the panicked people won’t have enough sense to back up so they can get the door open. If you were called as a juror to decide such a case you might think that the prosecutor was wasting your time on such a technicality, unless of course there had been a fire and people had died because of the improperly hung doors. The classic trivial case is DUI without personal injury or property damage. (When I say "trivial," I don't mean the case is really trivial. I mean that it is a case that most people are not going to get excited about).

A lot of what lawyers do in a trial is attempt to get the jury to see their doubtful or trivial case as an honorable case. If defense attorneys have a dishonorable case, they are often satisfied if they can get the jury to perceive it as a trivial case. This last tactic won’t work for prosecutors, because juries rarely convict in cases which they see as trivial.

Now let’s look at the usual pattern for violent confrontations between police officers and citizens and see where they normally fall from the perspective of the defense attorney representing the police officer. (1) The citizen usually comes to the officer’s attention because the citizen is breaking the law. This moves the case to honorable. (2) The citizen often has an extensive criminal record. We move further toward honorable. (3) The officer is simply trying to enforce the law. Further toward honorable. (4) Police officers are perceived by most jurors as “good guys.” Even further toward honorable. (5) Police officers often make very good witnesses. We are now about as far as we can get into the category of honorable.

Now look at the case from a prosecutor’s perspective and tally up the factors which push the case toward dishonorable: (1) The victim was breaking the law. (2) The victim and the victim’s witnesses have criminal records. (3) The officer was merely attempting to enforce the law. (4) Police officers are perceived by most jurors as “good guys.” (5) The witnesses for the prosecution are usually not as “good” as police officer witnesses. The prosecution starts off in a deep hole and will have trouble climbing out of it.

Of course, there are myriads of additional factors which can push the prosecution case toward honorable and the defense case toward dishonorable. Such factors include, but or not limited to the following: The officer may have been extremely discourteous, or may have used excessive force, or may have done something incredibly stupid, or may have displayed blatant disregard for proper police procedure, or may get himself tangled in a web of false statements.  These factors will weigh heavily against the officer in a police brutality lawsuit, but they won’t weigh as much in a criminal prosecution. There are two reasons for this: (1) The lighter burden of proof in a civil case, and (2) the fact that in a civil case you’re only arguing over money, not life and liberty.

Up to now I’ve only talked about the non-legal intangibles of such cases, but when I broached the subject of burden of proof, I have begun to talk about the legal obstacles to convicting police officers. The burden of proof is not the only legal obstacle. Our criminal justice system is designed to insure (as much as humanly possible) that the innocent don’t get wrongly convicted. We do this at the expense of erecting barriers to prosecution which protect the guilty. Remember the old saw: “It’s better that [10][100][1,000] guilty go free than that one innocent be wrongfully convicted.”

I’m not going to discuss all the barriers to conviction which we have erected, but I do want to look at one barrier which I think plays the largest part in such cases—the laws relating to lawful use of deadly force. I’m just going to look at Florida law because that’s what I’m most familiar with, but Florida law is similar to such laws all over the United States. I’m not going to talk about the case law or statute law relating to deadly force, I’m going to talk about what judges tell jurors about the law of deadly force. (At the end of this article, I have set out the Florida Standard Jury Instructions dealing with the use of deadly force).

First, let’s talk about the general law relating to use of deadly force and then we’ll talk about those laws specific to the use of deadly force by law enforcement officers. The most important aspect of the deadly force law is the fact that in a criminal case the defendant doesn’t have to prove that he acted in self-defense. All he has to do is raise a reasonable doubt about whether he acted in self-defense. If the jury has a reasonable doubt, they must acquit. This is very different than in a civil case, where the officer is going to have to prove that he acted in self-defense.

You can use deadly force in self-defense if you reasonably believe that it is necessary to keep you from suffering death or great bodily harm. You don’t have to actually be in danger of death or great bodily harm, you simply have to be confronted by a situation where the appearance of danger causes you to reasonably fear death or great bodily harm. This factor often comes into play when officers shoot suspects who are “armed” with toy guns or other object that look like guns.

You can not only use deadly force to protect yourself from death or great bodily harm, you can use it to prevent the commission of a forcible felony against your person. This means a jury could determine that you acted in lawful self-defense even in situations where you knew full well that you were in no danger of death or great bodily harm.

Example: Dan Doofus is shooting a shotgun at you as you sit in your vehicle. You know full well you are at the maximum effective range of the shotgun and that the pellets are going to do nothing more than ruin your paint job. You have a scoped .308 deer rifle and are a master marksman. You shoot Dan Doofus dead to keep him from ruining your car’s paint job. You can argue that the killing is justifiable homicide based on the following interpretation of the self-defense law. Dan has committed the forcible felony of shooting at an occupied vehicle. (Fla.Stat. § 790.19).  Although it isn’t one of the crimes specifically defined as a forcible felony in Fla.Stat. § 776.08, it is a crime “which involves the use or threat of physical force or violence against any individual.”

This has particular applicability to law enforcement officers because the crime of resisting an officer with violence is a forcible felony. (Fla.Stat. § 843.01). The crime of resisting an officer with violence can be committed in a completely nonviolent fashion by simply uttering the threat “If you try to arrest me, I’m going to poke you in the nose.” Under a strict reading of the language of the Florida Standard Jury Instructions, the officer is arguably justified in whipping out his gun and shooting the suspect dead to prevent getting a bloody nose.

Another Example: I just read a novel in which a police officer decided to kill someone. In order to kill the man, he engineered a situation which he knew would cause the suspect to violently resist arrest. The suspect was bigger and stronger than the officer, far superior in hand-to-hand combat, and also a sadistic brute. The officer approached the suspect, made sure that the suspect saw him discard his weapon, and told the suspect was under arrest. When the suspect attacked the officer, the officer pulled out a concealed weapon and killed him. Justifiable homicide.

The fact that the officer is making an arrest can be argued to give him even more justification than this. After the arrest resister finishes beating the officer to a bloody pulp, he’s not going to say “Okay, now you can arrest me.” He’s going to walk off, effecting an escape. The officer has told the suspect he’s under arrest, the suspect is now in the officer’s custody. When he leaves the officer’s custody, he has escaped. An officer has a right to use deadly force to prevent the escape. A defense attorney can argue that he was perfectly justified in shooting the suspect in the back as the suspect walked away because he was preventing an escape from custody. “Now ladies and gentlemen of the jury, please listen very carefully to the judge’s instruction when she tells you “A law enforcement officer or other person who has an arrested person in [his] [her] custody is justified in the use of any force that [he] [she] reasonably believes to be necessary to prevent the escape of the arrested person from custody.”
The examples I have given are, of course, extreme examples where the defendant quite likely will not be able to convince a jury to find him not guilty. I am exaggerating in order to demonstrate that in less extreme situations the defendant has a good likelihood of escaping punishment.

I’ve handled enough homicide cases to know that just because a homicide is “justifiable,” that doesn’t mean it is either necessary or unavoidable. So as you see there are myriads of factors working against the prosecution in any doubtful case, and those factors are magnified in cases where the defendant is a police officer. These factors are there regardless of the ethnicity, religion, national origin, or sexual orientation of the parties involved.

Prosecutors have the duty of bringing criminal charges only when they believe that they have a reasonable prospect of conviction. The clearest statement of this principle can be found in the Federal U.S. Attorney’s Resource Manual, §9-27.220A, which provides that Federal prosecutors should “commence or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction….”

So why do so many officers “get away” with killing civilians? Because it’s so hard to get a conviction. Because conscientious prosecutors don’t file charges unless they’re confident they can get a conviction.

Now I’ve handled a lot of resisting arrest cases, both as a prosecutor and defense attorney, and I know that sometimes officers provoke suspects into acting out violently. In my experience, however, those violent confrontations usually come about because the arrestees don’t like police officers. You might even say they are prejudiced against police officers.

 

3.6(f)  JUSTIFIABLE USE OF DEADLY FORCE

 

                Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

 

                Read in all cases.

                An issue in this case is whether the defendant acted in self-defense.  It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.

 

                Definition.

                “Deadly force” means force likely to cause death or great bodily harm.

 

                Give if applicable.  § 782.02, Fla. Stat.

                The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

 

1.            another’s attempt to murder [him] [her], or

 

2.            any attempt to commit (applicable felony) upon [him] [her], or

 

3.            any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].

 

                Insert and define applicable felony that defendant alleges victim attempted to commit.

 

                Give if applicable.  §§ 776.012, 776.031, Fla. Stat.

                A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent

 

1.            imminent death or great bodily harm to [himself] [herself] or another, or

 

2.            the imminent commission of (applicable forcible felony) against [himself] [herself] or another.

                Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla. Stat.

 

                Aggressor.  § 776.041, Fla. Stat.

                However, the use of deadly force is not justifiable if you find:

 

                Give only if the defendant is charged with an independent forcible felony.  See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).

1.            (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or

 

                Define applicable forcible felony.  Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.

2.            (Defendant) initially provoked the use of force against [himself] [herself], unless:

 

a.            The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).

 

b.            In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

 

                Force in resisting a law enforcement officer  § 776.051(1), Fla. Stat.

                A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

 

                Give if applicable.

                However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary.  See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

 

                In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction.

 

                Read in all cases.

                In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used.  The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.  Based upon appearances, the defendant must have actually believed that the danger was real.

 

                No duty to retreat. § 776.013(3), Fla. Stat.  See Novak v. State 974 So. 2d 520 (Fla. 4th DCA 2008)  regarding unlawful activity.  There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.

If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

 

Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit.

 

Presumption of Fear (dwelling, residence, or occupied vehicle).  Give if applicable.  § 776.013(2)(a)-(d), Fla. Stat. 

If the defendant was in a(n)[dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred.  The defendant had no duty to retreat under such circumstances.

 

                Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat.  Give as applicable.  

                The presumption of reasonable fear of imminent death or great bodily harm does not apply if:

 

a.            the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner,

                lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

 

b.            the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

 

c.             the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or

 

                d.            the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

        If requested, give definition of “law enforcement officer” from § 943.10(14), Fla. Stat.,    

 

§ 776.013(4), Fla. Stat.  

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

                Definitions.  Give if applicable. § 776.013(5), Fla. Stat.  

As used with regard to self defense:

 

                “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

 

                “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

 

                “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

 

                Prior threats.  Give if applicable.

                If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself].  However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.

 

                Reputation of victim.  Give if applicable.

                If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

 

                Physical abilities.  Read in all cases.

                In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

                Read in all cases.

                If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

 

                However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

 

Comment

 

                This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1999 [732 So. 2d 1044], 2000 [789 So. 2d 984], 2006 [930 So. 2d 612], and 2010.

 

3.6(h) JUSTIFIABLE USE OF FORCE
BY LAW ENFORCEMENT OFFICER
 

                In making an arrest of a felon. § 776.05, Fla. Stat. Give if applicable.

                A law enforcement officer, or any person [he] [she] has summoned or directed to assist [him] [her], need not retreat from or stop efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force that [he] [she] reasonably believes necessary to defend [himself] [herself] or another from bodily harm while making the arrest. That force is also justifiable when necessarily used:

 

1.                   in retaking a felon who has escaped or

 

2.                   in arresting a felon who is fleeing from justice.

 

                Force in making unlawful arrest or unlawful execution of a legal duty prohibited . § 776.051(2), Fla. Stat. Give if applicable.

                Use of any force by a law enforcement officer or any person summoned or directed to assist the law enforcement officer is not justified if:

               

1.                   the [arrest] [execution of a legal duty] is unlawful and

 

2.                   it is known by the officer or the person assisting [him] [her] to be unlawful.

 

                To prevent escape from custody. § 776.07(1), Fla. Stat. Give if applicable.

                A law enforcement officer or other person who has an arrested person in [his] [her] custody is justified in the use of any force that [he] [she] reasonably believes to be necessary to prevent the escape of the arrested person from custody.

 

                To prevent escape from penal institution. § 776.07(2), Fla. Stat. Give if applicable.

                A guard or other law enforcement officer is justified in the use of any force that [he] [she] reasonably believes to be necessary to prevent an escape from a penal institution of a person the officer reasonably believes is lawfully detained.

 

                Give if applicable.

                "Deadly force" includes, but is not limited to

 

1.                   firing a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and § 776.06(1)(a), Fla. Stat.

 

2.                   firing a firearm at a vehicle in which the person to be arrested is riding. § 776.06(1)(b), Fla. Stat.

 

                Definition. Give if applicable.

                A "firearm" is legally defined as (adapt from § 790.001(6), Fla. Stat., as required by allegations).

 

Comment

 

                This instruction was adopted in 1981 and was amended in 1989, 2004, and 2010.