Since Graham v Conner has yet to be overturned it is not legally wrong. Not yet anyway. If you have cites of the lower court cases please supply them. I would love to know what accommodations the courts are saying should be given and how. Reasonable accommodations have to be made for people with disabilities, including the mentally ill. But who decides who is mentally ill and who is not? And when? In some cases (known history) the cops might know but in others its not so easy. What is the difference between a mentally ill person off their meds acting violently and a PCP crazed person? A person who is high on bath salts? A meth-fueled paranoid? Or old-fashioned jackass going berserk for whatever reason? Are these all deserving of accommodations? How about a suicide by cop subject? They are, by definition, mentally ill. They are at least as dangerous as a “normal” person since the threat of force isn’t a deterrent, it’s a goal.
Any accommodations become “unreasonable” when there is a reasonable belief that the person presents a threat to an officer or anyone else. Cops can’t let a mentally ill person get any closer to them with a knife than anyone else just because they “very frequently play out on predictable lines”. Creating distance and de-escalation are excellent tactics but cops have to draw a line in the sand somewhere. They can’t just keep backing up forever.
The courts have also held that force must be reasonable at the time it is used and have, wisely, cautioned against second guessing police tactics prior to the use of force. In New Jersey, policy states that deadly force is not to be used if there is a safe alternative available. Backing away from a knife wielder may be an alternative but once he presents a threat to anyone, it isn’t a safe one. I’d like to re-assert my position that there is no law that says police must retreat when faced with a threat or resistance. Please point me at one if it exists. We pay them to NOT retreat. The NJ policy is just that, a policy. It isn’t law and an officer who elected to use deadly force rather than retreat may face administrative punishment but not criminal charges. And he would likely qualify for immunity from civil action as well.
I’ve asked this before and I’ll ask it again –why do some many people want to absolve others of personal responsibility when something “bad” happens to them in a police encounter? The vast majority of police use-of-force incidents are preceded by non-compliance to lawful orders, resistance or a threat to officer or public safety. It is the suspect who determines what is going to happen next. The cops are reacting. If they get carried away, hold them accountable. But don’t forget who precipitated the event.
No, that’s not correct. Graham governs excessive force claims. It does not govern ADA claims. Here’s an example of an ADA claim in an excessive force situation. The Supreme Court reversed parts of this case, but did not rule on the ADA claim.
Here is the key part:
Why not? The policy in Burlington County is to contain the person, for hours if need be. What’s wrong with that? Why is it better to kill the person?
Sure, with sufficient training and agility and a little luck, you can avoid shooting that guy charging at you with a knife. But why risk it?
Police have NO duty to retreat. That is part of the police power. We as a society confer this power on them because we think law and order is more important than the someone trying to kill a police officer.
I generally place the blame for the shooting of an assailant on the assailant. One day we will have phasers that can be set on stun but until then, anyone attacking a police officer runs the risk of getting shot and killed.
As explained in the later posts in this thread, this is false. In some circumstances, police do indeed have a duty to retreat so they can approach the scene using safer tactics. Read the Ninth Circuit case I posted above.
Attacking a police officer? Sure, no problem. But watch the videos linked above where the one guy is strolling down the street and the other guy is on the sidewalk. Neither was attacking or threatening the cops. Both were shot multiple times by the cops. Or the kid in the park who was shot in a millisecond after the cop car rolled up, or the guy who was shot in walmart carrying around a toy gun. In those cases, there was no effort to observe or understand the situations before opening fire.
No duty to retreat? What about a duty not to escalate the situation, and perhaps think of less lethal force than 10-16 shots from firearms?
And though we don’t have phasers, we do have tasers that can be fired from a distance.
cite that the majority of people killed by cops are mentally disabled?
And so what?
You think cops want to shoot mentally disabled people? It turns out that the mentally disabled can commit murder too.
Are you of the opinion that most police killings are like this?
Look, we have a problem with cops killing civilians in this country and the problem has a racial element to it. Cops seem to feel they can get away with killing black men where they would suffer significant repercussions if they killed a white man but that doesn’t mean that the 80% of cops that do a good job day in and day out should have to risk their lives to give some knife wielding idiot the benefit of the doubt.
Police do not generally have a duty to retreat. They don’t have to accommodate the criminal in an effort to save his life while he is trying to kill the officer.
21 foot rule is a simple rule by design.
Disturbed or disabled?
Because in my book a mentally disturbed dude with a knife doesn’t make him any less dangerous.
“The shooting was lawful
when viewed from the moment of the shooting because at that
point Sheehan presented an immediate danger to the officers’
safety. Under our case law, however, officers may be held
liable for an otherwise lawful defensive use of deadly force
when they intentionally or recklessly provoke a violent
confrontation by actions that rise to the level of an
independent Fourth Amendment violation.”
That case does not seem to address an officer’s duty to retreat. It only seems to hold that it is possible that breaking into a mentally ill person’s home and shooting them could be found to be unreasonable by a jury so the plaintiff can go to trial in response to a motion to dismiss. In reaching that decision of whether or not a trial can be had, they have to view the facts in the light most favorable to the non-moving party (the woman that got shot).
Nowhere does the opinion imply that the officers had any duty to retreat if the woman came out of her room with a knife. Or did I miss something.
I’m not saying that there aren’t cases of bad police conduct. I’m saying that the notion that the police have a duty to retreat is incorrect. I suppose there might be some corner case where they have a duty to retreat if a 2 year old somehow got his hands on his daddy’s gun and started waving it around rather than shoot the kid dead but generally speaking, I don’t think such a duty exists.
You may just be using the phrase “duty to retreat” too narrowly. I was talking about whether officers have a duty to create a safe corridor and wait instead of getting so close to the suspect that they risk injury and therefore must shoot the suspect–that is the context in which the issue was raised above. And that is the claim for which the Ninth Circuit case is on all fours.
As you said, the Supreme Court didn’t rule on the ADA issues in Sheeran. That is not the same as saying that they agreed with the 9th Circuit. IANAL but, from what I’ve read, many who are read the Supreme Court’s decision to imply that they would have ruled on the issue had it been properly argued and that they would have ruled that ADA protections in police encounters are pretty limited or non-existent if exigent circumstances are present. Armed and violent seems to meet the definition of exigency.
The U.S. District Court of Virginia ruled in Waller v City of Danville, Virginia that no reasonable accommodations are required when exigent circumstances are present. The 5th Circuit in Hainze v Richards said Title II does not apply to an officer’s on-the-go street response, regardless of whether the calls involve suspects with mental disabilities, prior to the officer’s securing of the scene so that there is no threat to the public. In any case, the lower courts are divided on the issue.
As to backing up forever, there are practical limitations. If you are backing up in an open field, that’s one thing. Doing the same thing on a crowded street is quite another. Where do you get that officers have a duty to create a safe corridor and wait? “Contain” as you mention in the Burlington County Policy isn’t construed by anyone that I know to mean “allow to move around or become mobile” as would be required by backing up forever. In neighboring Atlantic County the policy specifically states that officers have no duty to retreat or desist when resistance is encountered.
The practical side is this. Officers should not place the safety of suspects (mentally ill or not) above their own or the public. You get zero slack if you are presenting an imminent threat. I predict, in the end, the USSC with rule along these lines.
True. And you may be right in speculating that they would not have agreed. But the law as it stands today is that a majority of circuits believe the ADA applies to police interactions. So it is currently false to say the law compels otherwise, unless you’re talking about a particular minority circuit.
And yet, departments both in this country and abroad are successful in doing it with some frequency.
Speaking of this as a duty is a misnomer. The question is whether and when it constitutes either a reasonable accommodation required by the ADA, or as a factor in the excessive force reasonableness analysis. Both are in flux, with the majority saying it is an ADA requirement sometimes, and a minority saying it is an excessive force factor sometimes.
Allowing the subject to move around is precisely what they do. They create a corridor using vans and officers and clearing the streets in a moving radius. It’s quite a production, but it saves lives.
Fortunately, SCOTUS doesn’t have the final say on the ADA. If they rule that Title II doesn’t apply to police encounters, then Congress can amend it. And whether it comes from the courts or legislatures, I predict that over the next decades most Americans will come to agree that if the police can safely contain a dangerous person by creating a safety corridor, they must do that for some reasonable and long length of time before getting so close that they create risks to themselves that justify deadly force. In the end it’s mostly a question of resources–whether we are willing to spend the time and money to stop killing so many mentally ill folks.
You are skeptical about when such a safety corridor can be employed without risk to the police or public. And that’s perfectly justified. But that’s an empirical question. I’m confident that department’s using this technique now will not have significant increases in officer injuries, and the model will spread.