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August 23, 2014
[Blue Line Lawyer]

Use of Deadly Force and the Reasonable LEO

As typically happens, the media inquiry and focus in the OIS in Missouri is starting to move toward the legal analysis of the use of deadly force. I’ve seen this progression in dozens of OIS cases when the pundits, who form opinions without any facts, immediately condemn the LEO. This is followed by folks who start to say “maybe, possibly, the LEO was acting in a lawful manner” as the facts start to emerge. Then we move to the “well here is what we know and here is what the law says” phase. Fortunately, we have now entered this stage.

The use of deadly force by LEOs is governed by state law, the state constitution, federal case law, and ultimately the Fourth Amendment to the United States Constitution. The use of deadly force by a LEO is, in every case a “seizure” under the Fourth Amendment. Wrapped up in this analysis is the right of every person, LEO or civilian, to use deadly force to protect themselves or a third party from another’s imminent use of force that is likely to cause serious bodily injury or death.

The United States Supreme Court set forth the standard to be applied to a LEO’s actions. In Graham v. Connor, the USSC held that the actions of a LEO must be viewed in the light of a reasonable LEO under the circumstances. The Court acknowledged that LEOs find themselves in “rapidly evolving circumstances” and the LEOs actions cannot be judged through the lens of hindsight.

Watch the dialogue change in the next few days and weeks. Now that the condition of the LEO and the actions of the deceased are coming to light, we see more information that we need to “stand in the shoes” of the reasonable LEO in this case. A LEO who is fresh, strong, and uninjured can be expected to react differently than a LEO who is exhausted from a physical confrontation, injured, near unconsciousness, and likely experiencing diminished vision in one eye. When the injured LEO is attacked a second time by an extremely large assailant he must reasonably expect that the attacker can more easily disarm and overpower him. People take guns from LEOs for one reason: to kill them. Faced with an attacker who outweighs the LEO by about 100 pounds, this injured LEO would be expected to use deadly force to stop another attack. That is the essence of the holding in Graham v. Connor.

The circumstances evolved. What would a reasonable LEO do under those circumstances. Stay safe.

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Disclaimer: This blog is for informational purposes and should not be considered legal advice about a specific issue or situation. Working directly with an attorney on your situation is the best method for navigating legal issues. If you have a concern about a specific issue or situation, you should seek legal advice without delay. Contact the supreme court or bar association in your state for assistance locating attorneys in your area.