Two police officers from Fullerton, California will soon stand trial for the fatal beating of a mentally ill homeless man. Officer Manuel Ramos is facing murder charges and Jay Cicinelli is charged with involuntary manslaughter for their participation in the actions that led to Kelly Thomas’s death. The entire event was videotaped and the audio was recorded:

http://www.youtube.com/watch?v=e6yaeD-E_MY

Haire law recently tried a civil case involving police and excessive force in Grayson County. We represented a 16 year-old boy from Denton County who was in a postictal (post-seizure) stupor in which he was combative to the paramedics trying to help him. The police were called in, and in trying to get the teenager under control, one officer tazed our client twelve times! The jury found that this was not police brutality or excessive force, that it is what was needed to control a clausterphobic teenager who didn’t even know where he was.

Obviously, police have to be able to use force in order to do their job protecting the public and themselves. No one would argue that police should not be able to use physical force to subdue a combative criminal. So what is excessive force? When does a certain force become excessive and what degree of force should police use? One commonly used model for police use-of-force is as follows:

In determining what force is reasonable under the circumstances, an officer should consider:

the severity of the crime at issue;

whether the suspect poses an immediate threat to the safety of the officer or others;

whether the suspect is actively resisting arrest or attempting to evade arrest by flight; and

other relevant information the officer reasonably believes to be true at the time.

Lets look at the factors in regards to the Fullerton/Kelly Thomas incident

Severity of crime- Kelly Thomas was being questioned by Officer Ramos for suspicion of vandalism. He was looking into windows of cars not far from where several cars had been vandalized. He acted suspiciously upon questioning, probably due to his schizophrenia, as it was later determined that he had no drugs in his system.

In this case, Kelly was suspected of a non-violent crime for which the police had no evidence he committed except that he was nearby acting suspiciously. His real crime, according to the police, came when he refused to keep his hands on his knees as instructed by the officer. This is often the crime that leads to use of force by police: disobeying an officer of the law. This is difficult to put on the “severity of the crime” continuum. If you are a innocent citizen minding your business, does refusing to obey the police make you a criminal? That can’t be right. In any case, it seems the use of force in the Kelly Thomas case far outweighed the severity of his crime of not listening.

Threat to officer safety- Mr. Thomas refused to keep his hands on his knees, putting the officer at unease. He then attempted to flee from police. At no point did Kelly Thomas come after the police or actively assault an officer. He did forcibly resist and attempt to flee. Again, it is hard to see how someone who does not want to be arrested can be said to pose an immediate threat to law enforcement or the public unless the underlying crime (see above) gave reason to think that the suspect was dangerous.

Actively resisting or attempting to evade- As mentioned above, this is the primary issue in this case. Mr. Thomas was definitely resisting evading once police attempted to arrest him. Therefore, use of force is necessary. But what degree of force? This is where this whole thing gets sticky. If none of the other factors have been met, what is the correct amount of force that should be used to subdue a resistant suspect? In our recent case, police used multiple tazer stuns. In the Kelly Thomas case, police used hands-on force, electrical conductive weapons (tazers), fist strikes as well as flashlight, baton and gun-butt strikes to the face. The State of California decide this was too much force for the situation, which is why the two officers will soon defend their actions to the citizens they swore to protect.

Here is what I know: On calls where there is no confirmed crime, there should be no reason to use force on a citizen. An arrest should only be made on probable cause. Police should not be allowed to turn any interaction into a “criminal” situation just by giving orders to someone that has done nothing wrong. Disobeying police orders should not be a reason to use physical force if there is no basis for giving those orders, i.e., no probable cause for arrest. I also know that situations are constantly evolving, and it should be a requirement of all active peace officers that, when using force, they be able to constantly evaluate the present circumstances and determine the best plan of action with the least amount of force. If not, officers are liable to succumb to “lazy cop syndrome” in which force, especially non-lethal force, is relied upon too early, too much and too often. We cannot have situations where citizens are injured or dying when no crime has been committed. We must expect more from our peace officers, because if they are not doing their jobs, if they are not meeting our requirements and expectations as the citizens who deploy them, they are nothing but armed thugs with authority. If they cross that line, if they fail us and go beyond what is acceptable, they must answer for their indiscretions. They must be held more responsible, because they took on that responsibility in exchange for the power they are granted as part and parcel to donning that uniform, badge and gun. Once we hold them to that standard, only then can we can reliably respect and obey the majority of police officers who risk their lives everyday protecting us.