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U. S. Constitution and Use of Force David Baxter CJ400 Constitutional Law in Criminal Justice Park College September 25th, 2010 Table of Contents Introduction 3 Ideologies Affecting Police Use of Force 4-6 Public Climate Regarding Use of Force 6-8 Law Enforcement’s Position Regarding Use of Force 8-12 Societal Implications 12-13 References 14-15 Introduction The prison escapee broke into the house while the owner was away and stole some food, pain pills, and a loaded handgun.

During the night, he dodged the sounds of hounds approaching. He was dead set on getting away at any cost, even if it meant he had to kill an approaching officer. After a few days, the officers finally had him cornered, he had nowhere to run. The run from the law that had started with a break from prison was about to end on a city street. The man on the run sees the officers in broad daylight and as he turns to run, he is met by a hail of gun fire and falls over dead. At the scene, law enforcement quickly converges on the scene, trying to keep onlookers away.

It is determined that the man was shot by as many as 17 rounds, but there is no public outcry, no claim of excessive force, and no one suing the officers. The story illustrates a use of police force in America, at a different time, a time when the United States Constitution was still young and the political scales was tipped toward justice, preservation of peace for the community, and punishment for those who breached that peace. How the times have changed, the political correctness that exists in ur modern times shows a societal shift of epic proportions, for the safety and greater good of society has been trumped by the rights of individuals and the due process of the law . There are many issues that come to mind when thinking about police use of force, the Constitution, and the political and societal climate of today. This work seeks to examine four matters in which the U. S. Constitution has played an important part in defining and creating: 1) Ideologies affecting police use of force. 2) Public climate regarding use of force. 3) Law enforcement’s position regarding use of force. ) Societal implications. Ideologies Affecting Police Use of Force The U. S. Constitution was created by the people, for the people. Regardless, the founding fathers of this country saw fit to adopt many of the century old practices and laws of their common law brethren. Whether done out of respect, need, or reasons unknown, the Constitution is the successor, however evolved, of the laws that governed England. The idea of individual liberty and the effect of governmental intrusion were stated best in a speech by President Woodrow Wilson: Liberty has never come from the government.

Liberty has always come from the subjects of government. The history of liberty is the history of resistance. The history of liberty is a history of the limitation of governmental power, not the increase of it (Woodrow Wilson, speech, Sep. 1912). While the government can intrude on individual rights, it is up to the people to ensure that certain rights are protected from such intrusions. The Constitution has attempted to keep with the aforementioned ideology, but it has seen many changes since the inception of this country.

No changes have been more apparent within our society than the changing ideas of police use of force. As early as the twelfth century, common law allowed the use of deadly force to capture a felony suspect (Amendment IV to the Constitution, West Encyclopedia of American law, as cited in Answers. com). This law was in place for several reasons. The main reason was because not many felonies were committed at that time and the ones that were, were usually punishable by death, therefore, killing a felon was seen more as “… implementation of the eventual penalty for their offenses” (Ferdico et al. 2009, p. 338). The other reason had more to do with lack of trained police forces, technology, and weapons. (Amendment IV to the Constitution, West Encyclopedia of American law, as cited in Answers. com). This changed however, fast forward to our modern age and a large number of crimes are now considered felonies and the majority of these crimes are not punishable by death. Modern weapons and trained police forces are now in place to deal with criminals on all levels (Ferdico et al. , 2009, p. 338).

The defining moment for how law enforcement perceived and used force against resisting or fleeing felons came with the decision in Tennessee v. Garner, 471 U. S. 1 (1985). This decision set the tempo for, not only restricted use of deadly force by law enforcement, but a change in the overall premise of what is considered the righteous use of force by law enforcement officers. Garner, a burglary suspect fleeing from a Memphis Police officer, was shot and killed and from the common law approach the use of force would have been completely justifiable (Ferdico et al. , 2009, p. 39) However, the lawsuit broke ground, because it asserted that Garner was “…unconstitutionally seized in violation of the Fourth Amendment because the use of deadly force against him was unreasonable under the facts and circumstances of the case” (Ferdico et al. , 2009, p. 339). The court ruled in favor of Garner, thus forever changing the common law premise. The premise that arises from the Garner ruling is that the state’s interest in capturing a felon does not trump the unarmed and non- dangerous interest the suspect has in living. Therefore, Law enforcement across the country had to change the way they did business.

Following the Garner decision, another important chapter in use of force ideology development was Graham v. Connor. In Graham v. Connor, 490 U. S. 386 (1989), the court held that law enforcement officers have to be judged under the standard of reasonableness as set forth from the 4th Amendment. The decision determined that the “reasonableness” of an officer’s actions should be determined by the severity of the crime, the immediate threat that the suspect poses to citizens and/or the officers, and whether the suspect is actively resisting or fleeing (Graham v.

Connor, 490 U. S. 386 (1989)). One innate problem with the reasonableness standard exists. If 20 people were asked to determine what is a reasonable amount of force to affect an arrest or detain an individual; there may very well be 20 different opinions on what is reasonable and what is not. In fact, Graham even notes the ambiguity, “Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application … ts proper application requires careful attention to facts and circumstances of each case … ” (Graham, 490 U. S. , at 396). In addition to establishing the reasonableness standard, Graham v. Connor and other cases such as, Illinois v. Gates, 462 U. S. 213 (1983), helped decide “all uses of force, deadly and non-deadly, are to be judged by the totality of the circumstance” and “…those circumstances known to the officer at the time the force was used without the benefit of 20/20 hindsight” (Ryan, 2009, p. 6).

Nevertheless, this standard continues to be applied today and is used to help determine whether or not an officer’s actions are within the boundaries of the Constitution and the 4th Amendment. The evolution from common law to today’s modern standard of how police use force has led to increased sensitivity within the political arena and the public’s opinion. Public Climate Regarding Use of Force As the police sergeant sat listening, the woman explained that she was a single mom, in her mid-forties, with two kids.

He continued to take her complaint as she described how threatened she felt by all the officers. She demanded something be done about how she was treated. The grievance filed against the officers was not for racial profiling, harassment, or even the slightest violation of her Constitutional rights; the complaint was because she felt threatened by more than one police unit behind her while she was being written a ticket for running a stop sign. This scenario illustrates, on a small scale, the public’s general perception of police use of force.

There are many underlying factors at the core of today’s viewpoint on use of force. First, police have maltreated the public’s trust. There exist a great number of cases involving police use of excessive force. Of course the Rodney King incident comes to most people’s mind when discussing the misuse of police force. This incident shocked the conscience of a city, nation, and perhaps the world. The subsequent aftershocks of King’s beating resulted in the LA Riots ultimately cost over a billion dollars and the deaths of 58 people along with as many as 2,000 injuries (Time, 2007).

Another incident that highlights a sadistic misuse of public trust is the incident involving the sexual abuse of Abner Louima by NYPD officer Justin Volpe and other officers. Officer Volpe was sentenced to 30 years in for the assault and the attack incited angry demonstrations by thousands of people (BBC News Online, 1999). These misuses of police force are not only crimes against the U. S. Constitution, but crimes against humanity and the human spirit. When these violations of people’s rights occur, it slowly tears down what little trust has been built between the police and the community.

These incidents of police abuse, in the digital age, have instant coverage in all parts of the globe. The ability for people to instantly see police using force is another factor that has contributed to the court of public opinion. In today’s society, the media influences every part of modern life, from the public’s intrigue of watching real-life entertainment to helping sway the outcome of presidential elections. Policing in the modern video age has changed the public’s perception of police and how they do their job.

Most everyone has seen countless use of forces, arrests, police shootings, and pursuits, the issue with this is that none of it is real; it is TV shows and movies (Johnson, 2007). After repeated exposure to fictional scenarios of force, such as bullets knocking people down and seeing suspects knocked out with a simple punch, the public gets condidtioned to seeing the nice , clean cut police arrest with little collateral damage. The public’s obsession with “real life” on film , has everyone becoming an expert and an arm chair quarterback .

Warren Richey, a staff writer of The Christian Science Monitor, exhibits an attitude that is prevalent among many persons in the United States when he states: To what extent police may use a stun gun against someone who is not actively resisting arrest but who is passively refusing to obey a police command. To some officers, such refusal is a form of resisting arrest and constitutes grounds to shoot 50,000 volts of electricity into that person’s body in five-second bursts (Richey, 2009, p. 2).

The public also knows that the courts have a loathing for seconding guessing a police officer’s decision, because of the uncertainty of the stressful situations that they deal with and concern over setting legal precedent that might influence or steal Constitutional police power. This has added fuel to the fire of public opinion. The public has valid concerns over the ever increasing, illegal use of police force. The pervasive attitude that now exists is seen in peaceful demonstrations, violent riots, and never-ending lawsuits against police officers. This attitude toward use f force is only one side of the controversy, police officers deal with the issue first hand, everyday. Law Enforcement’s Position Regarding Use of Force There is no doubt that law enforcement officers have a dangerous and difficult job. The public expects officers to be tough and aggressive enforcers of the law, yet have complete control of their emotions and actions. Officers are aware of this standard, yet they are human and they make mistakes. The U. S. Commission on Civil Rights, in 1981, noted that: Police officers possess awesome powers. They perform their duties under hazardous onditions and with the vigilant public eye upon them. Police officers are permitted only a small margin of error in judgment under conditions that impose high degrees of physical and mental stress (U. S. Commission on Civil Rights, (1981), as cited in the Journal of Criminal Law and Criminology, 1994). The fact is that in many circumstances, a small margin for error has cost many officers their jobs and has caused some to do prison time. This error in judgment or inability of the officer to shut down the emotions and adrenaline is exemplified in the Rodney King incident.

Although King’s 4th Amendment rights were violated, the vast majority of the officer’s use of force was ruled legal and well within permissible use of force parameters. While substantial force was used to get king to comply and to lie in the prone position, only the last few blows were actually ruled illegal and lead to criminal liability. This was the case, because King had finally complied with the order to assume a prone position and submit to handcuffing when the last few blows were thrown (United States v. Koon, 833 F. Supp. 769 (C. D. Cal. 1993), aff’d in part, 518 U.

S. 81 (1996)) as noted in (Wallentine, 2007). Once again for police officers doing their job, the line between rigteous use of force and criminal liabilty was very fine. A look into an officer’s perception of use of force would not be complete without the opinion of an experienced street officer who knows first hand about the application of Constitutional righteous use of force when effecting an arrest. Take for instance the real world example of Steve. Steve has been a police officer for 10 years and a defensive tactics trainer for five of those years.

He works for a large size city in Arkansas and his interview gives the reader a glimpse of the kind of reality that exists for law enforcement on a day to day basis. Interviewer: What do you consider a use of force? Steve C. : For me, police use of force is simply me being there in uniform or pulling up in my patrol car. This is when use of force starts, because that is when citizens start to perceive you and the fact that you are in charge of a situation. Interviewer: I see, so you believe use of force starts the minute people recognize you as a police officer. How often do you have to use force in a police situation?

Steve C. : All the time, because like I said, an officer in uniform is force, but the average Joe public doesn’t think that is use of force. I definitely articulate my presence and people’s demeanor in my reports. Interviewer: Ok, I get what you are saying, so how often do you use physical force? Steve C. : Not very often, in general, people think that the police constantly have to wrestle, fight, and use a large amount force, but the honest truth is our professional demeanor, articulate use of communication, and safety in numbers reduces the amount and the number of times we have to use force.

Interviewer: Ok, you mention safety in numbers, what is that? Steve C: A citizen may be pulled over for a traffic violation, simple speeding. The initial officer notices the windows a little more tinted than normal and he radios for another officer to provide back up. There just happens to be a third officer who is not busy, so two other units stand by while the initial officer writes the ticket. That is safety in numbers. Interviewer: I see, but the general public may view that differently than the officer in general, correct? Steve C. Yes they always do, they think they are getting picked on, but the truth is we don’t know who we are stopping. I could have just stopped two cars earlier in my shift that had felony warrants on them. Sometimes you have days like that, so you are always cautious. Interviewer: Do you ever think about making the right decisions and applying Constitutional requirements when using force? Steve C. : Every officer, that is a professional, wants to do the right thing, but I don’t think they think of applying the Constitution in every situation. Sometimes, you are just reacting and surviving, especially in high stress use of force situations.

Interviewer: Officer thank you for your time and providing insight for this paper. Steve C. : No problem. In general, the courts have sided with officers, knowing that they may face extreme circumstances. The courts have held that even during the use of excessive force, good faith immunity may still be available under some circumstances (Finnegan v. Fountain, 915 F. 2d 817 (2d Cir. 1990)). The revelation that officer Steve B. made in the interview, regarding the infrequency that actual physical force is used is relevant and is backed by proof.

In a published study by the Department of Justice, data revealed, “Known with substantial confidence is that police use force infrequently. The data indicate that a small percentage of police-public encounters involve force” (Department of Justice, 1999). The study further goes on to report that the majority of police use of force “… occurs at the lower end of the force spectrum, involving grabbing, pushing, or shoving” and that the use of deadly force is the force that is used the least (Department of Justice, 1999).

Officers have stated that the ability to utilize good communication skills defuses more people than actually hitting them with batons or shooting them with 50,000 volts of electricity. Rarely does the public perceive it this way. The perception of the officer and that of the general public is vastly different and seems to create a divide , a gap that pits the “us against them” mentality from advocates on both sides of the issue. What does the difference in indealogies mean for our society? Can this divide be bridged and if so how? Societal Implications The U.

S. Constitution has sought stability between individual rights and the security of our society. These lines, at times, have been undeniably blurred. The honest truth is that this is the best we have and most Americans will argue that this is the best system in the world. The Constitution is a living document that is continually evolving to match the demands of our modern society. The changes can be seen by the restrictions placed law enforcement officers use of force on fleeing felons to the changes we see today regarding further 4th Amendment seizures.

The public outcry, resulting from shocking use of force abuse and blatant 4th Amendment violation of some people’s rights, has been loud and clear. While police departments, internal affairs, supervisors, and everyday street officers themselves have and will publicly denounce blatant misuses of police power, they know that there exists only a small margin of miscalculation. Departments across the country have sought to bridge the gap that exists among the community and police.

New Orleans police department, a department riddled with bad cops, corruption, and Constitutional violations, is seeking to change its culture and is doing so by bringing the public on board (McCarthy, 2010). Police have to have an open door policy and for the most part show transparency in the dealings with it’s citizens. Another idea to help bridge the gap would be to openly publish not only crime statistics, but use of force incidents and why they occur. Secrecy breeds suspicion, leading to distrust by the public.

Many times a department is involved with using deadly force and fails to communicate to the public why this occurred. Presenting true facts, once the investigation is done, helps the community accepts and heal. Mistakes are unavoidable and when mistakes are made, it is crucial that departments admit error and move on. The public wants to see progress and if errors in judgment, tactics, or for any other reason are made, the department must quickly move to admit and correct the mistake. Sometimes this means more and better training for officers.

The court of public opinion is a hard case to win, but educating the public about why officers do what they do will help. Many departments have Citizen’s Police Academy’s for this very reason. Offering basic educational classes on 4th Amendment rights is also another option. Perhaps Woodrow Wilson was correct all along. In order to protect our own freedoms it is the right and privilege of every citizen to be aware of their own rights and to ensure that those rights are protected, not violated. It is clear that no matter what use of force situation law enforcement officers are faced with, it will involve a split-second decision.

The public perception is that the officer must be right every single time, but no officer has the time nor means to ensure that an objective test is met every time, under every stressful situation. References Alpert, G P, ; Smith, W C (Fall 1994). How reasonable is the reasonable man? : police and excessive force. Journal of Criminal Law and Criminology, 85, n2. p. 481-501. Retrieved September 02, 2010, from Criminal Justice Collection via Gale: http://find. galegroup. com. pegleg. park. edu/gtx/start. do? prodId=PPCJ;userGroupName=morenetpark

Amendment IV to the Constitution, West Encyclopedia of American law, as cited in Answers. com). http://www. answers. com/topic/amendment-iv-to-the-u-s-constitution BBC News Online. (1999, Dec 13). NYPD officer jailed for brutality. Retrieved Sep 04, 2010, from http://news. bbc. co. uk/2/hi/americas/563441. stm Department of Justice. (1999, Oct). Use of Force by Police: Overview of National and Local Data. Retrieved Sep 06, 2010, from National Criminal Justice Reference Service: Ferdico. J. , Fradella, H. , Totten, C. (2009). Criminal Procedure for the Criminal Justice Professional, Tenth Edition.

Belmont, CA: Wadsworth Cengage Learning. Finnegan v. Fountain, 915 F. 2d 817 (2d Cir. 1990), http://www. ncjrs. gov/pdffiles1/nij/176330-1. pdf Graham v. Connor, 490 U. S. 386 (1989), http://supreme. justia. com/us/490/386/ http://ftp. resource. org/courts. gov/c/F2/915/915. F2d. 817. 89-7832. html Illinois v. Gates, 462 U. S. 213 (1983), http://www. 4lawnotes. com/showthread. php? t=1173 Johnson, J. (2007, April). Use of Force and The Hollywood Factor. Retrieved Sep 04, 2010, from AELE Law Enforcement Legal Center: http://www. aele. org McCarthy, B. a. (2010, May 06).

Incoming NOPD superintendent Ronal Serpas faces daunting assignment. Retrieved Sep 06, 2010, from NOLA. com : www. NOLA. com Richey, W. (May 28, 2009). Police Tasers: excessive force or necessary tool?. The Christian Science Monitor, p. 2. Retrieved September 02, 2010, from Criminal Justice Collection via Gale: http://find. galegroup. com. pegleg. park. edu/gtx/start. do? prodId=PPCJ;userGroupName=morenetpark Ryan, J. (2009). Legal Issues: Use of Force/Deadly Force. Indianapolis, IN: Public Agency Traininig Council. Tennessee v. Garner, 471 U.

S. 1 (1985), http://supreme. justia. com/us/471/1/case. html Time. (2007). The L. A. Riots: 15 Years After Rodney King. Retrieved Sep 04, 2010, from http://205. 188. 238. 181/time/specials/2007/article/0,28804,1614117_1614084_1614831,00. html Wallentine, K. (2007, Sep 05). How to ensure use of force is “reasonable and necessary” and avoid claims of excessive force. Retrieved Sep 05, 2010, from PoliceOne . com : http://www. policeone. com Woodrow Wilson (U. S. President, 1913–1921, Speech at New York Press Club 9th September 1912); http://isocracy. org/node/43.

Government and Civil war

Government and Civil war.

 Description To what extent did the role of the federal government change both during and as a result of the civil war. Essay must be minimum 5 paragraphs and contain a strong thesis the makes a historically defensible claim that establishes reasoning. 

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