Posts Tagged ‘use of force’

I’ve written before about the important role that canines play in policing, as well as the need to protect them from harm to the maximum extent possible. I definitely believe these dogs are valuable tools when used with proper training and under the appropriate guidance of a responsible human partner.

Image courtesy of Maggie Smith/ FreeDigitalPhotos.net

Image courtesy of Maggie Smith/ FreeDigitalPhotos.net

But, a pair of stories in recent weeks raises some concerns about use of force when it comes to canines.

First  up, a jury in Atlantic City recently awarded damages to a man assaulted by a police officer during an encounter in 2008. The officer involved in that incident, Sterling Wheaten, was held personally liable and ordered to pay half of the $500,000 damage award himself.

As it turns out, that same officer is also being sued in at least five other cases, including one in which he allowed his canine to severely bite a man in June of this year. The video of that incident is below, and it offers a gritty view of what appears to be abusive police behavior by Wheaten.

Watch for yourself.

Atlantic City Incident

The video (starting at 3:10) appears to show a man being subdued by four Atlantic City officers, who eventually wrestle him to the ground to take him into custody. Just as he appears to be coming under control, Wheaten pulls up and releases his canine, which is then allowed to mercilessly attack the man, even biting his neck at one point.

You can see in the video how the officers, who are already on top of the arrested man, have to literally move out of the way to avoid being bitten by the dog themselves.

The man, Connor Castellani, required 200 stitches as a result of the dog attack, which appeared, in my opinion at least, to have been a completely disproportionate police response to the situation. That will ultimately be up to a jury to determine, however.

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And, before you think that the decision might be a slam dunk based on the video, juries have sided with canine officers in similar cases in the past, even in situations in which video footage appears to show excessive force being used.

In December 2013, Stafford Brister, an officer with the Wilmington Police Department in North Carolina, was cleared by a grand jury in a use of force case involving the officer and his canine partner.

The below video of the incident shows officer Brister lifting his canine into a suspect’s vehicle after a police chase. If you look closely, you can see that the man appears to have submitted at that point by raising his hands in the air.

Nevertheless, the canine can be seen attacking the man.

Wilmington Incident

Now, I’m no apologist for fleeing suspects, and I don’t condone drinking and driving, damaging property, or any of the other crimes this suspect was later charged with committing, but I do believe that shoving the dog into the car after the suspect had stopped and apparently given up was potentially an excessive use of force.

To my mind, it would be akin to one police officer helping another officer enter the car for the sole purpose of attacking someone. Once inside the car, the dog is under only tenuous control, at best, and it certainly doesn’t have the reasoning capabilities of a human officer in terms of stopping or reducing the attack at any point where maximum force is no longer required.

If the video showed a human officer being hoisted through the window and then viciously attacking the suspect, I think we’d all agree that would be excessive. So, I’m not seeing how doing the same with a canine partner is any different in this situation.

The District Attorney also felt it was a close enough call to get a grand jury involved, and they ultimately decided that excessive force was not used.

old-oak-entrance-door-ot-grand-jury-room-in-crown-court

Grand jury proceedings are secret, so we will likely never know what information they received or the exact reasoning behind their decision. But, we can look to some other sources to potentially help with understanding canines and use of force.

According to the U.S. Police Canine Association, use of police canines is subject to the same three-part test as other use of force situations. Officers must consider:

  • The severity of the crime at issue;
  • Whether the suspect poses an immediate threat to the safety of law enforcement officers or others;
  • And whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Also, according to the same Supreme Court decision that generated the above test, Graham v. Connor (PDF), the court had this to say about use of force during arrest:

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

In the Wilmington case, the behavior involved was potentially a felony, the suspect had allegedly posed a significant threat to officers (he was driving recklessly and dangerously), and he had reportedly been resisting arrest in the moments prior to the encounter with the dog. All of that may have been influential in the grand jury’s decision not to indict Brister.

Further, it’s important to note that the Supreme Court, in applying the reasonable officer standard, made the point that use of force decisions must be evaluated from the perspective of an officer at the scene, not someone able to calmly judge it after the fact by watching a video of the incident, for example.

In the Atlantic City case, on the other hand, Castellani was suspected of only misdemeanor behavior, appeared to pose only a minimal threat to officers (especially since there were four officers present initially), and he was no longer resisting at the point Wheaten arrived and released his dog.

I don’t think any reasonable officer at the scene would have concluded that it was reasonable or necessary for Wheaten to use his canine to attack and bite Castellani the way he did.

But, maybe I’m wrong. What are your thoughts?

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I always try to take a balanced approach when examining police conduct on this blog. I feel I owe it to my students, and to readers in general, to contribute to reasoned discussion and debate about the role of police in modern society by sharing both the good and the bad about police behavior.

Image courtesy of adamr / FreeDigitalPhotos.net

Image courtesy of adamr / FreeDigitalPhotos.net

My personal position is that most officers do a fine job – despite making mistakes at times – but we rarely hear about the positives.

I’ve written previously, though, about cops who’ve bought Christmas gifts for burglary victims or even literally given someone the shirt off their back, as well as about those who go out of their way to protect the constitutional rights of citizens to peacefully protest or record police activities.

So, I was troubled to see a recent post on PINAC (Photography is Not a Crime) about an officer in Florida who was found to have violated his department’s policies in response to the lawful, constitutionally protected videotaping of public police behavior.

Watch for yourself.

BCSO Task Force Arrest of PINAC Editor

The officers in the video not only do an incredibly poor job of managing the situation overall, in my opinion, but more troubling (to me at least) is that they appear to be engaging in a form of pseudospeciation, which is the idea that one group views members of another group as dangerous and/or unworthy of fair treatment.

The term is normally applied to differences between ethnic or racial groups, but in this case it appears related to subcultural differences. The police view the photographer as “one of those guys,” which is apparently code for someone from an “out group” who should be treated with suspicion and taught a lesson.

Regardless of the underlying causes, the officers’ superiors obviously agreed that misconduct occurred, having issued at least one of the officers a letter of reprimand for his behavior in this case.

And, that officer, identified by PINAC as Agent Brian Stoll in a follow-up post about the above incident, is no stranger to allegations of misconduct.

A public records request by PINAC to the officer’s agency, the Brevard County Sheriff’s Office (BCSO), resulted in the release of 28 documents, some of which describe specific misconduct allegations against “Agent S,” as he’s referred to in the released forms (although one of the forms, dated 2/3/11, does list “Brian Stoll” by name). Fourteen of the documents reference various use of force incidents (the released form is titled “Response to Resistance”), but do not appear to have been generated by a specific complaint of misconduct.

Instead, those forms seem to be documenting incidents in which an injury occurred during an arrest or other encounter, and the matter is being reviewed by the agency’s administrators to make sure the officers’ behavior was in compliance with department policy. Of the fourteen, thirteen of the forms indicate that the department’s internal review found the officers’ behavior to be “in compliance.”

One of those, though, indicates that Agent S was not in compliance when a Taser was used improperly during an arrest.

2013-U-110 - 2013-U-110.pdf 2014-01-01 05-49-01Excerpt from 10/29/13 BCSO memo regarding misuse of force by Agent S

In three of the 28 documents, Agent S is listed only as a witness or as an indirect participant.

The eleven remaining documents (see the table below) describe specific allegations of misconduct against Agent S, referencing incidents that occurred over an eight year period between June of 2005 and October of 2013. The outcome of nine of them was either unknown or the allegation was determined by an internal BCSO investigation to be unfounded.

Only two, including the above incident involving PINAC, were substantiated and resulted in some type of consequence for Agent S.

It’s very interesting that the two incidents that did result in substantiated misconduct involved either video evidence (in the PINAC case) or the combined reporting of multiple police witnesses at the scene (misuse of the Taser).

Incident Date Reported on Date Allegation Outcome Outcome Date
6/1/05 7/15/05 Rudeness and improper citation Unknown  8/14/05?
9/3/08 9/4/08 Rudeness, unlawlful search/seizure, and damage to personal property Unfounded 10/1/08
10/2/08 10/03/08 Lying in police report and planting drugs Unfounded 10/15/08
Unknown 12/17/08 Improper arrest/detention and search of vehicle Unfounded 1/9/09
8/9/07 4/9/09 False arrest Unfounded 5/12/09
2005 9/1/10 Unspecified violations of law and department policy Unfounded 2/3/11 – According to time stamp on the document, employee involved was “Brian Stoll”
10/30/12 10/31/12 Use of force Unfounded 11/2/12
12/21/12 12/25/12 False arrest and use of force Unfounded 1 /4/13
7/16/13 7/16/13 Use of force Unfounded 8/1/13
10/17/13 10/17/13 Use of force (Taser) Not in compliance – Letter of counseling 10/29/13
10/23/13 10/23/13 Failure to investigate, failure to document evidence, and failure to provide information Letter of reprimand 10/29/13

Summary of allegations of misconduct against Agent S, 2005 – 2013, as obtained by PINAC

In the end, I’m not sure exactly what hard and fast conclusions we can confidently draw from all this, though. Zealous, proactive police officers are going to generate complaints from suspects, arrestees and others who, rightly or wrongly, feel their rights were violated. Allegations against police aren’t always made with the most honorable of intentions, and they’re not always accurate.

On the other hand, the video evidence above does appear to show that, in this case at least, this officer misinterpreted the law, acted out of personal anger or animosity toward a person perceived to be from an “out group,” and misused the authority granted to his role by society.

Video evidence like this is quite powerful, as it turns out, and perhaps that’s why some officers continue to insist that photography is a crime when it actually isn’t.

What are your thoughts?

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There’s little doubt that the police have a tough job to do. Unfortunately, sometimes that includes using deadly force in chaotic, dynamic, and ambiguous circumstances.  The accidental shooting in Times Square this past weekend of two innocent bystanders by police points up the complexities and dangers of using firearms during street encounters.

Photo courtesy of nesoiam

Photo courtesy of nesoiam

But, what do we really know about police shootings on a national scale? Does anyone track them, and what might those numbers tell us?

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