By Jim Glennon

[Editor’s note: Details on a free Webinar focused specifically on the issues discussed in this article are at the end of this piece.]

The Event

On August 15^th, Sacramento police officers responded to a man with a large knife on a light rail train at the City College Station.

The police cleared the car of all but the man, who was obviously agitated. After the officers began talking to him, he displayed a large knife, at one point putting it to his neck as he sat.

The police warned him repeatedly to drop the knife. The primary officer advised another officer that if the man stood up, he should “use less-lethal.”

Shortly thereafter the man did stand and was struck by several less-lethal bean bag rounds. This seemingly amplified his level of agitation, and he advanced on the officers with knife in hand. The officers responded by firing multiple rounds, killing him.

A police spokesperson said that the responding officers “tried de-escalation techniques and less-lethal methods of subduing the man before using their firearms.”

Watch the Video

With that brief background, watch the video linked below, edited by Calibre for training, and temporarily posted on our YouTube channel:

https://www.youtube.com/watch?v=qR0GadCn-n4

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IMPORTANT NOTE!

This video will be posted on YouTube for a limited time after which it will be moved to The Vault, Calibre Press’s powerful new online video training service. The Vault is packed with hundreds of videos like this one, complete with training points included and designed for quick viewing in roll call, during in-house training programs or anytime, anywhere officers have an Internet connection.

CLICK HERE FOR FULL DETAILS ON THE VAULT!

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Today’s Lens of Expectations

What do you think?

Necessary shoot, in the moment?

Good, legally justified shooting?

It was obvious the officers did not want to shoot the man. They didn’t rush him. They didn’t call him names. They didn’t issue ultimatums.

They did, as the police spokesperson said, utilize “de-escalation techniques and less-lethal methods of subduing the man before using their firearms,” didn’t they?

They were under immediate threat from the man’s knife-wielding attack at the moment they fired, weren’t they?

So again, was it a good, legally justified, objectively reasonable shooting?

Your gut reaction, my gut reaction, is…yes.

Based on the Graham standard, the moment the officers fired their weapons, they were responding to an imminent deadly threat.

It is obvious and evident on the video.

But is that enough in today’s climate?

And, perhaps most importantly, when it comes to a police shooting, does the Graham standard apply to criminal statutes?

Graham Standard: A Recap

For over 30 years, the Graham standard (Graham v. Connor, 490 U.S. 386, 1989) has been the foundation of use-of-force trainings as well as an analytical principal when investigating uses of force by police officers.

Chief Justice Rehnquist delivered the opinion of the Court in the Graham case establishing that when officers use force, said force would henceforth be analyzed from the perspective of the Fourth Amendment and the objective reasonableness standard.

He included in his opinion that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

In addition, the opinion included that “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.”

Since the early 1990s this Graham standard has been taught to police officers. It is what guides them when making their force decisions or investigating the force used by other officers.

Generally, Graham established that the moment force was used is what is important. What were they responding to the moment they determined deadly force was the objectively reasonable option?

In this Sacramento case, the officers were responding to a deadly force attack. An unstable, uncooperative man charging at them with a knife.

It certainly meets the Standard set by Graham.

End of story.

Or is it?

Criminal Statutes vs. the Graham Standard

What if an officer is charged criminally?

Does the Graham standard strictly apply?

Well, it’s not that simple. In some states, in some jurisdictions, in the courtrooms for some judges, the answer is a very surprising, no.

“Graham may not apply in criminal matters where officers are criminal defendants,” says highly seasoned law enforcement defense attorney Laura Scarry. “It depends on a few things (yes, it’s a crap shoot):

• State Statutes and Case Law: It depends on whether state statutes and case law adopts the federal civil standard and specifically addresses the issue of about second-guessing officers and their pre-shooting behavior using the benefit of the 20/20 vision of hindsight
• The judge: In states where the case law is silent, the question will be, will the judge buy into arguments by the officer’s attorney that Grahamshould be the standard?
• The prosecutor: Often, the prosecutor’s office is ultimately responsible for reviewing officer involved shootings. Will they consider all aspects of Graham?

“In my review of cases where officers have been criminally charged in states where the case law is silent on whether Graham applies or not, it appears anecdotally that judges will agree with the officer’s counsel some of the time but only IF they bring it up,” Laura continues. “Hence the reason it is incumbent on officers to obtain legal counsel who have knowledge of how officers are trained.”

The Birth of the Graham Standard

The Graham standard was born, obviously, not from a case where an officer was charged criminally, but rather from a case where officers were sued under 42 U.S.C. 1983. A federal civil rights violation.

It is in Rehnquist’s opinion where we find that officers, generally, cannot be second guessed as to what happened prior to the use of force.

In other words, going backwards and analyzing every one of the officer’s actions prior to force being used, and guessing that a different tactic would have prevented the necessity of using force, is largely prohibited from consideration when attempting to find fault with the officer.

What happened in the moment is what matters. What was the officer responding to, in that moment? Not what the officer could have said, or could have done tactically that may, just may, have resulted in an alternative outcome that did not include the need to use deadly force.

But, as Laura Scarry clearly pointed out, an officer being charged criminally can be an entirely different matter.

In criminal court, when an officer has been charged with a crime of violence against a person, the aspect of Graham that dictates force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight, and outside of the mere moment, might not apply.

The triers of fact may hear from prosecutors that the officer’s pre-shooting actions are, in fact, subject to consideration. That in hindsight, they used inappropriate and unsound tactics. Therefore, the officer is responsible for causing, or contributing to, the aggressive behavior of the suspect that necessitated deadly force being employed by the officer.

Officer Jason VanDyke, the Chicago police officer who shot Laquan McDonald in October of 2014, was charged with first-degree murder and stood trial for killing the 17-year-old. McDonald was in possession of a knife as he walked down the middle of the street after brandishing the weapon and threatening to kill police officers. VanDyke exited his car and from about 10 feet away shot and killed the teen.

After a highly contentious trial, jurors convicted VanDyke of not first-degree murder, but rather second-degree murder because, according to several who spoke to the press, they took into account what the officer perceived in the moment of fire.

However, jurors, when explaining their reasoning for the conviction, placed almost of the onus for the entirety of the situation on VanDyke and little on the behavior of the knife-wielding Laquan McDonald.

In their press conference, the jurors used words and phrases such as, “escalated,” “diffused,” “looked for other options,” etc. One even, while ironically using the complete benefit of the “20/20 vision of hindsight”, said that “VanDyke should have realized (in the moment) what the situation was…”

Where did the VanDyke jurors hear the terms, diffuse, deescalate, looking for other options? The prosecutors used them constantly throughout the trial as they pointed at the officer.

I’m not passing judgement on the jury or their verdict. My point is that in a criminal trial, hindsight and judging the officer’s pre-shooting behavior may very well be a significant consideration by the triers of fact.

As stated, the Graham standard generally dismisses the “what-ifs” when it comes to judging the officer’s behavior prior to the use of force. The “what ifs” being unknowns, mere guesses that different officer tactics would have resulted in a different behavior from the suspect, which then would have precluded the officer from the need to use force.

In other words, complete speculation. Speculation brought forth and championed by prosecutors during a trial.

Back to the Sacramento Train Case

The Sacramento County Coroner identified the man killed on the train by police as 44-year-old Dante Day. His time of death was listed at 5:33 p.m.

As of the writing of this article the investigations (internal and perhaps criminal) of the officers are still ongoing.

Will an argument be made that the responsibility and fault for Dante Day’s death is on the officers? That their decisions and pre-shooting tactics agitated an obviously disturbed man? That the use of less-lethal caused Dante Day to charge the officers with knife in hand? That his aggressive behavior was not his fault?

The officers obviously did not want to use deadly force against this man. They maintained their distance, which is a good strategy and tactic.

An officer assured Day that, “No one wants to hurt you” as they implored him to drop the knife.

When he did stand up, the police stayed away and fired less-lethal bean bag rounds in an effort to make him drop the knife.

They only shot when the man charged them in very close quarters.

Still, in a world where deescalation is not just a word but an absolute expectation, will those efforts be enough to eliminate any culpability on the officer’s part?

Obviously, in both policies and case law, clarity of wording—or lack thereof—can have a dramatic impact on use-of-force and other cases. To illustrate that reality, I’m going to use the new and current Illinois law under the SAFE-T Act to examine the legal issues as though the Sacramento case happened in Illinois. Specifically, 720 ILCS 5/7-5.

My point here is to spotlight semantic nuances that in my opinion could prove troublesome. To point out what I find to be vague, subjective wording that could impact how criminally-charged officers are being judged.

From Sec. 7-5.

At first glance things look pretty good as paragraph (f) states: “The decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time of the decision, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.”

Seems as though it matches Graham. But does it?

Consider this from my feeble mind, not the mind of a trained lawyer. But here is what caught my eye: “and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.”

May be forced? In the Sacramento situation, was the officer forced to shoot or would he have been forced to shoot if he simply left the car and shut the door? Would that be a legal argument–that the officer used forced that was unnecessary?

Am I paranoid here?

Let’s look at paragraph (d).

(d) Peace officers shall use deadly force only when reasonably necessary in defense of human life. In determining whether deadly force is reasonably necessary, officers shall evaluate each situation in light of the totality of circumstances of each case, including, but not limited to, the proximity in time of the use of force to the commission of a forcible felony, and the reasonable feasibility of safely apprehending a subject at a later time, and shall use other available resources and techniques, if reasonably safe and feasible to a reasonable officer.

What caught my attention here is the word shall. Officers, according to the criminal statute, “shall use other available resources and techniques, if reasonably safe and feasible to a reasonable officer.”

Does this not lend, at least in part, to second guessing the officer’s immediate decisions and tactics in this case. Walk out of the train and shut the door. Let the man calm down. Couldn’t that be a prosecutorial argument?

And still, paragraph (h)(3) which states, “Totality of the circumstances” means all facts known to the peace officer at the time, or that would be known to a reasonable officer in the same situation, including the conduct of the officer and the subject leading up to the use of deadly force.

Again, I am not an attorney, but I was the investigations commander of a major crimes task force so I did become familiar with statutory nuance. I have to ask myself, do these paragraphs found in the Illinois statutes at least open the door for prosecutors to use the benefit of the 20/20 vision of hindsight?

Second Guessing and the Benefit of Hindsight

What was the mental state of Dante Day?

The armed man can be heard repeatedly saying “Please” and “I can’t do it!” He also said, “I’m scared of y’all” to the officers at least twice.

As he sat, Day repeatedly screamed “Yahweh” and “Lord, please!

He then began banging his knife handle against the train window as he shrieked,” Please, don’t run up on me!”

But when he stood up, the police immediately responded with bean bag rounds.

They did this in order to avoid using deadly force.

The less-lethal rounds had no effect other than agitating an already unstable and agitated man. Immediately after the rounds struck Dante Day, he charged the officers.

Hindsight questions that may be asked in a non-stressful environment by people who were not in the position of the officers:

— What if they never fired the beanbag rounds? Perhaps Dante Day would not have charged?

— What if the officers simply left him alone in the train car and didn’t point their guns at him?

Maybe he would have calmed down naturally.

Who knows?

The questions imply that a different outcome was possible. But again, it’s speculation and uncertain.

Conclusion

In today’s world, officers are more at risk for criminal liability than ever.

Training absolutely must reflect that reality.

Deescalation and Intervention are not mere tactics but are, in many cases, legal requirements within the scope of criminal liability. At least in some jurisdictions.

While Graham generally prohibits second guessing an officer’s pre-shooting behavior and the use and benefit of the 20/20 vision of hindsight during assessment of an officer’s force actions, criminal investigators and prosecutors have no such prohibition.

Over the past three years it is obvious that several indictments of officers were motivated by the political ambitions of some activist prosecutors. That’s undeniable.

Still, officers need be aware of the difference between a 42 U.S.C. 1983 federal civil rights suit and criminal statutes when it comes to their tactics, communication and general behavior in force events.

Training is the key.

Using videos such as this one from Sacramento, that enable officers, supervisors and trainers to discuss all aspects of a force encounter will assist in changing attitudes about how to train for like events.

Whether you are an officer, trainer or supervisor, it is incumbent upon you to prepare yourself for the realities officers face in today’s post-George Floyd world.

Calibre’s The Vault can assist in that type of proactive training.

Be sure to CLICK HERE for full details!

Editor’s note: Calibre Press is hosting a free Webinar on Nov. 15 from 10am – Noon central, in coordination with our sponsoring partner Vector Solutions. The program, featuring law enforcement attorneys Scott Wood and Laura Scarry and Calibre’s Jim Glennon, will focus specifically on the issues discussed in this article. CLICK HERE to register at no cost. *All registrants will get a link to a recording of the live program.