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Journey To Justice, June, 2018: New Jersey Employment and Civil Rights Lawyer Discusses Deadly Force by Police

Sadly and unfortunately, we're seeing more news coverage than ever before about police-involved shootings. That doesn't mean, of course, that police excess is a new phenomenon. America has experienced police excess - usually disproportionately directed at the poor, ethnic, and disenfranchised - for the entire history of police. What's new is the ability of the media to cover expose it and spread that information to the widest, most accessible audiences in history. More, with the advent of bodycams, cell phones and wide spread security cameras, the public has a better picture than ever of the raw data concerning these events.

Don't get us wrong. Cops need to use force - even deadly force - at times. We arm them and enable this discretionary action, empowering them (and, hopefully, training them) to cope with these enormous decisions when faced, hoping they'll make the right decision. Yet, because these decisions ends lives - depriving the dead from ever establishing their innocence - that we must ask: when is law enforcement permitted to use such force?

The United States Supreme Court set the standard in two cases. In 1985 in the matter of Tennessee v. Garner, the court held that an officer can only use deadly force against a fleeing suspect if the suspect is a significant threat to the officer or others. Shortly thereafter, in another case, Graham v. Connor, the court held that the use of force "must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight."

So while there's always going to be a fact-specific inquiry in each particular case, here, in New Jersey, our state Attorney General has published Guidelines for the use of deadly force (see below). The bottom line is that deadly force should be a last resort, always. If you have questions about an officer's use of such force, you should reach out to qualified counsel.

Excerpt from New Jersey Attorney General's Use of Force Policy:

Use of Deadly Force

  1. A law enforcement officer may use deadly force when the officer reasonably believes such action is immediately necessary to protect the officer or another person from imminent danger of death or serious bodily harm.
  2. A law enforcement officer may use deadly force to prevent the escape of a fleeing suspect:
    1. whom the officer has probable cause to believe has committed an offense in which the suspect caused or attempted to cause death or serious bodily harm; and
    2. who will pose an imminent danger of death or serious bodily harm should the escape succeed; and c. when the use of deadly force presents no substantial risk of injury to innocent persons.
  3. If feasible, a law enforcement officer should identify himself/herself and state his/her intention to shoot before using a firearm.

Restrictions On The Use of Deadly Force

  1. A law enforcement officer is under no obligation to retreat or desist when resistance is encountered or threatened. However, a law enforcement officer shall not resort to the use of deadly force if the officer reasonably believes that an alternative to the use of deadly force will avert or eliminate an imminent danger of death or serious bodily harm, and achieve the law enforcement purpose at no increased risk to the officer or another person.
  2. A law enforcement officer shall not use deadly force to subdue Attorney General's Use of Force Policy (6/00) persons whose actions are only destructive to property.
  3. Deadly force shall not be used against persons whose conduct is injurious only to themselves.
  4. Under current state statutes the discharge of any projectile from a firearm is considered to be deadly force, including less lethal means such as bean bag ammunition or rubber bullets. For that reason, these and similar less lethal means of deadly force can only be used when an officer reasonably believes such action is immediately necessary to protect the officer or another person from imminent danger of death or serious bodily harm.
  5. A law enforcement officer shall not discharge a weapon as a signal for help or as a warning shot.
  6. While any discharge of a firearm entails some risk, discharging a firearm at or from a moving vehicle entails an even greater risk of death or serious injury to innocent persons. The safety of innocent people is jeopardized when a fleeing suspect is disabled and loses control of his or her vehicle. There is also a substantial risk of harm to occupants of the suspect vehicle who may not be involved, or involved to a lesser extent, in the actions which necessitated the use of deadly force.
    1. Due to this greater risk, and considering that firearms are not generally effective in bringing moving vehicles to a rapid halt, officers shall not fire from a moving vehicle, or at the driver or occupant of a moving vehicle unless the officer reasonably believes:
      1. there exists an imminent danger of death or serious bodily harm to the officer or another person; and
      2. no other means are available at that time to avert or eliminate the danger.
    2. A law enforcement officer shall not fire a weapon solely to disable moving vehicles.

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