Mar 10

Avoiding Deadly Force Encounters

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As I was preparing to give a talk at a Minneapolis event regarding community and police officer relations, it dawned on me that the excessive force test that the U.S. Supreme Court laid out in the landmark case of Graham v. O’Connor not only provides the basic legal framework for deciding an excessive force case, but also provides a very practical guide for citizens seeking to avoid deadly encounters with law enforcement.  In Graham, the Court identified three factors that must be analyzed to determine whether a police officer used excessive force. Those factors are: (1) the severity of the crime that the suspect committed; (2) whether the suspect posed an immediate threat to the safety of officers or others; and (3) whether the suspect resisted arrest or attempted to evade arrest by flight.

If the suspect alleging excessive force committed only a minor crime, posed no immediate threat to officer safety or the safety of others, and did not try to resist arrest, the chances increase that this suspect would be successful in bringing an excessive force claim.  This is why, in deciding whether to take on an excessive force case, our law firm evaluates these three factors above all others.  However, as I contemplated these factors more deeply a few weeks ago, it became clear to me that if we could effectively educate our citizens, especially those that reside in minority communities, to always comply with these factors when they encounter law enforcement, perhaps we could also limit the number of deadly force incidents that occur in our society far too frequently.

Let me be more specific in what I mean by this. The first Graham factor analyzes the severity of the crime committed.  In our schools, churches, workplaces and in our private conversation with our children, we should be consistently driving home the importance of being a law abiding citizen. Refraining from committing murder, rape, burglary and robbery is an obvious point.  But our citizens should be just as vigilant to always drive with proof of insurance; to make sure their taillights are working properly; and to make sure they are driving within the posted speed limit.  Failing to abide by these “minor” laws provide police with a legal excuse to stop your vehicle. We shouldn’t give law enforcement that excuse, and thereby increase the risk of a deadly encounter with a police officer. The second Graham factor analyzes whether the suspect poses a threat to officer safety or the safety of others.  If you are stopped by a police officer, the best course is to be respectful to the officer, and as compliant with the officer’s commands as you can be.  We have recently seen that even absolute compliance does not guarantee that your life will not be lost during the encounter.  It will, however, decrease the chance that the officer will view you as a threat and overreact with excessive force.  Finally, if during your encounter with the police, if it appears that you will be arrested, do not flee, do not in any way seek to resist arrest. Perhaps you feel you have been arrested unlawfully, that is fine, but you are not likely to win that argument during the heat of the encounter.  Your first concern should be to take the necessary steps to preserve your life and physical well-being.  After the encounter, you can contact a civil rights attorney such as myself and we can talk about your legal options.  Let us remain vigilant to do all that we can to fight for our civil rights, but also preserve our lives in the process. Be safe.

Oliver Nelson III is a trial attorney who specializes in the areas of personal injury and civil rights

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