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Several years ago, a young part-time officer was prosecuted for murder in the off-duty shooting of a known violent offender who attacked him.

As part of my review of the case and written opinion, I noted that the agency did not follow its policy and procedure in the aftermath of the use of deadly force. The policy clearly indicated that an attorney, retained by the township, was to be called to represent the officer before any/all questioning. His name and cell phone number were even included in the policy.

He was never called, and the young officer was subsequently interviewed by state police without any representation in the hours after the OIS.

The prosecutor’s office made a motion to exclude any and all reference to agency policy in any testimony in the defense case.

The judge ruled that because the part-time officer was not a “bargaining unit member” so agency policy did not pertain to him…

Lately I have been flummoxed when working in defense of officers charged with crimes in use of force incidents. The prosecutor hires experts who cite alleged violations of agency policy, from the pursuit which preceded the use of force, to how the use of force was reported. In short, the subsequent use of force on a fleeing violent resisting felon was bad because the officer, among other things, may have violated the agency pursuit policy.

It seems like the applicability of policy in criminal investigations of use of force is pretty inconsistent huh?

Vastly Different Policies

With over 18,000 police agencies in the United States, seldom do agency policies mirror each other. Even in agencies from the same state, policies can be different.

Some are up to date on the legal standards while some don’t even mention the legal standards. Some have not been reviewed for years and years. Some agencies hand out the policies to new hires but do not conduct any training on the policy. Some agencies do not test for officer understanding.

Recently I worked two criminal cases in the Commonwealth of Virginia in defense of two police officers. Both cases occurred after state law changes on police use of deadly force. Neither agency policy included the new state standards. Neither agency had trained its officers on the new state standards. Of course, Virginia’s Attorney General had not mandated agency training on the new state standards either.

Addressing the impact of policy in a use of force investigation

“Furthermore, the fact that Officer Schulcz's actions may have violated Springdale's policies regarding police use of force does not require a different result. … the issue is whether Officer Schulcz violated the Constitution, not whether he should be disciplined by the local police force.”

“While not expressly saying so, the Seventh Circuit has already recognized that city policies do not determine constitutional law. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988), the Seventh Circuit held that a police officer acted reasonably in shooting at a fleeing bank robbery suspect after giving the suspect two warnings, even though he could not be certain the suspect was armed. An expert testified that the officer's actions had violated the city's police manual and generally accepted police practices. Rather than considering these local rules, the court limited its attention to whether the officer had violated Garner. We believe this is the proper approach, and we adopt it in this case.”

Smith v. Freland, 954 F.2d 343 (6th Cir. 1992)

I frequently cite Smith v. Freland when addressing agency policy review in use of force incidents. Here’s another citation from that case, “[W]e must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes “reasonable” action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”

Your circuit may or may not have similar caselaw. In Ohio we also have State v. White which applies the Graham and Garner standards in criminal cases. 

State v. White states, “In Graham, the Supreme Court identified several contextual considerations, some drawn from Garner, for evaluating whether a particular use of deadly or non-deadly force was objectively reasonable under the applicable standard. These include “the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” The so called Graham factors, however, are not some judicially-imposed checklist the officer must run down before employing force. Rather, they are simply examples to assist the trier of fact in assessing the reasonableness of force under particular circumstances. They present a “nonexhaustive list” in the calculus of what is reasonable.”

The Court in White did not list policy violations as part of the “calculus of what is reasonable.” Instead, the Court in White quoted SCOTUS in Graham, “[A]ll claims that law enforcement officers have used excessive force— deadly or not —in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard[.]”

Pertaining to the “experts” hired by the prosecution in the above cases (including one “expert” who had never testified before as an expert, and whose CV only listed his training of his own agency firearms programs, and no advanced training in use of force investigations), the Court in the White case also wrote:

“Graham's prohibition similarly extends to the testimony of even the most erudite police procedure consultant when it crosses into the prohibited territory of second-guessing and “armchair reflection.” This includes comparative speculation, couched in backward-looking terms, about what the officer “could have” or “might have” done differently, and whether he “should have” employed alternate or lesser means of force, or different tactics.”

Questions: 

What if an officer follows a policy that is outdated and one that does not incorporate the proper legal standard? Is that a lawful use of force?

What if state law permits certain law enforcement actions, such as vehicle pursuits, and agency policy forbids them? Can the officer be criminally charged in a subsequent use of force when he complied with state laws but violated agency policy?

How about when agency policy is more restrictive on use of force than Graham or Garner? The agency then creates the conundrum that the use of force was within the law but violated policy. Should he or she be charged?

What happens to agency supervisors/investigators who violate policy in the investigation of an officer’s use of force? Should they be charged as well, or do they get a pass?

Certainly, these are issues that will undoubtedly come up in civil actions against the agency, but should policy come up in the prosecution of an officer?

We can look to State v. White for some common sense:

“The protections of the Constitution do not change according to the procedural context in which they are enforced - whether the allegation that constitutional rights have been transgressed is raised in a civil action or in a criminal prosecution, they are the same constitutional rights.”

Graham and Garner apply. Agency policies do not.

If an agency wants to discipline an officer for violations of policy, so be it. This can include discipline up to and including termination. That’s an internal investigative matter. But, in my humble opinion, the agency should also make sure that they have reviewed their policies on a regular basis and have trained and tested their officers to document competency.

In the end, policies are internal guidelines, not the law.