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When does police use of force become “excessive?”

Recent high-profile shootings of unarmed black men by white police officers have raised concerns about police brutality.

Photo by Garrett Wilber (Flickr)

Use of excessive force by police officers has been a prevailing issue in the recent news across the United States.  Some may think that the unnecessary force by officers is only a new phenomenon, but in reality, FBI data indicates that it has been an ongoing issue for many years.

Reports to the FBI show that a black person was killed by a white law enforcement officer twice a week between 2005 and 2012.  Each year there are about 400 counts of “justifiable homicide” by police officers.  Criminologists who have studied police use of deadly force attack these statistics because of their inconsistencies compared with independent studies on the number of fatalities attributed by law enforcement.  Data can be skewed no police department wants to admit or believe that excessive force is being used.  However, these statistics are the most reliable picture of excessive force we have.

The warrant for Groubert’s arrest stated that Groubert “[did] without justification unlawfully shoot Jones….”

One shocking use of excessive force that has made headlines recently is the case of thirty-five-year-old Levar Jones of Columbia, South Carolina.  On September 4, 2014, Jones pulled into a parking lot when he saw he was being pulled over by a police officer.  Unbeknowst to Jones, this traffic stop would be a life-altering event.  Former Lance Cpl. Sean Groubert of the South Carolina Highway Patrol wrote in his report that he pulled Jones over after witnessing Jones driving without a seatbelt.  Graphic dashcam video from the police car shows Groubert pulling up behind Jones’s car and asking Jones for his license as Jones exits his car.

Jones respond to Groubert’s request by checking his back pocket for his wallet.  When he realizes it was not in there, he reaches inside his car to retrieve his license.  Groubert immediately draws his gun and starts to shout at Jones to “Get out of the car!”  Groubert shoots several times, and continues yelling, “Get out of the car!”  Jones immediately raises his hands into the air and stumbles away from the car, hitting the ground.  Jones asks Groubert several times “Why did you do that? What did I do? I was trying to get my driver’s license.”  Jones was struck at least once in the hip, fortunately not suffering any fatal wounds.

Groubert was fired from the South Carolina Highway Patrol and has been charged with assault and battery of a high and aggravated nature, a crime with a potential twenty-year sentence.  His bond was set at $75,000, and he was released on bail the same day.  South Carolina law enforcement quickly announced to the public that the facts are undisputed and all blame is to be put on Groubert.  The warrant for Groubert’s arrest stated that Groubert “[did] without justification unlawfully shoot Jones….”  Additionally there is evidence, including eyewitness testimony, that Groubert not only used too much force, but the incident occurred in broad daylight and Groubert ignored the signs that Jones was not a threat.

Jones was unarmed during the encounter.  Groubert violated several police department policies, including the use-of-force policy.  The policy makes it clear to officers to only use a necessary level of force required to accomplish lawful objectives.  It also directs officers to discontinue all force once it is no longer necessary.

Not surprisingly, this was not Groubert’s first incident with using unnecessary force.  However, he has always been punished by a slap on the wrist in the past.  The Highway Patrol has upheld two previous complaints, one in 2009, and the other in 2013, against Groubert.  Both were followed by internal investigations by the agency.  In 2009, Groubert worked for the Public Safety Department, but left after an internal investigation began, and therefore caused the case to be dismissed.  The 2013 incident required Groubert to undergo counseling because the offense was considered a minor policy violation.

So far in 2014, thirty-five people have been shot in South Carolina by police officers, and sixteen have actually died.

The South Carolina case sparked more concern of racial profiling in the state’s African American community.  Sadly, accusations of police racial profiling causing brutality against innocent people has been all over the news.  In 2012, Trayvon Martin, a seventeen-year-old African American high school student was shot and killed by George Zimmerman, an Hispanic neighborhood watchman.

In August of this year, Michael Brown, an eighteen-year-old African American man was fatally shot by a Darren Wilson, a white Ferguson, Missouri police officer.  Although the witnesses have given different accounts as to what happened in the moments before Brown’s death, some facts are undisputed.  Brown and his friend Dorian Johnson were walking home in the middle of the street when a police officer confronted them.  Everyone who witnessed the tragedy that night said there was some type of struggle, but Brown was unarmed.  Some witnesses say that Officer Wilson shot Brown multiple times as Brown was running away from the officer with his hands in the air screaming for him to stop shooting.

Defense attorney and CNN legal analyst Danny Cavellos has explained that police officers have the same rights as civilians when it comes to self-defense.  There is conflicting evidence as to whether Brown was trying to flee or was facing the officers.  Under Tennessee v. Garner, the U.S. Supreme Court held that deadly force is allowed when an alleged felon is trying to flee or if the officer has probable cause that the person poses a significant threat of death or serious physical injury to others.  Whether or not Brown was actually trying to flee will help explain to the public why Officer Wilson used six gunshots, and paused during the gunfire.

Similarly, for the first time in over a decade, an officer in South Carolina has been charged with a fatal shooting.  Ernest Satterwhite, a sixty-eight-year-old African American man, was shot and killed by a white police officer who repeatedly fired through Satterwhite’s passenger window after Satterwhite pulled into his own driveway.  It is rare for a prosecutor to actually bring an action against a police officer, but in this case the prosecutor wanted to charge the officer with voluntary manslaughter, with a maximum sentence of thirty years in prison. However, the grand jury disagreed, and indicted him on a misdemeanor.  So far in 2014, thirty-five people have been shot in South Carolina by police officers, and sixteen have actually died. Last year, the total was up to forty-two.

Instances similar to those listed above occur all over the U.S., including New York, California, New Mexico, Pennsylvania, Georgia and Illinois.  Whether racial profiling causes these instances is up for serious debate.

Experts say that excessive force is beyond what is necessary to arrest a suspect and keep police and bystanders safe.

Excessive force is very hard to define.  It is up to the officer to make judgment calls as to what reasonable level of force is necessary on a case-by-case basis.

The meaning of “excessive” varies by jurisdiction.  Experts say that excessive force is beyond what is necessary to arrest a suspect and keep police and bystanders safe.  Human Rights Watch researcher Allyson Collins, who wrote a report on police brutality in the United States, says that the Justice Department received around 12,000 complaints every year of law enforcement abuse and brutality.  Fewer than fifty of these complaints actually result in a conviction, which may be attributable to weaknesses in the legal system, not just with the complaints.

A “force continuum” standard is used by a majority of police forces across the U.S. to help guide their actions.  The continuum dictates that first, police officers should use a polite request, then demands, then chemical sprays, then physical force, then lethal force.  Policies for officers in the line of duty state that the level of force needed to use against a person is determined by what force the suspect is using, or threatening to use against the officer.  Yet, the question still remains as to who is the proper authority to determine what force is “excessive” and what force is reasonable.

Danielle Feller, Associate Editor
About Danielle Feller, Associate Editor (16 Articles)
Danielle Feller is a 2016 graduate and served as an Associate Editor for the Campbell Law Observer during the 2015-2016 academic year. She is originally from Mooresville, North Carolina and graduated from North Carolina State University in 2013 with a degree in Political Science with a concentration in Law and Justice and a minor in Business Administration. Following her first year of law school, Danielle interned at the Mecklenburg County Public Defender's Office in the Felony Unit. Following her second year of law school, Danielle interned at the Office of the Federal Public Defender for the Eastern District of North Carolina. Danielle is also worked as Professor Bobbi Jo Boyd's research assistant during her third year of law school.
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