Posted in Civil Rights,Excessive Force on June 2, 2015
When police create a situation that causes a need to use force, can the police be held responsible for their actions– even if the the ultimate use of force was appropriate?
The short answer is, yes. Where police act recklessly, and that conduct results in the need to use force against another person, the police may be held responsible for creating the situation in the first instance.
This principle of Fourth Amendment jurisprudence may play a critical role in the death of Tulsa man Nehemiah Fischer, who was shot and killed by Oklahoma Highway Patrol troopers Michael Taylor and Mark Southall.
A partial video released by OHP shows Taylor and Southall antagonizing and calling at Fischer like an animal as Fischer desperately tries to save his truck from rising creek water.
Taylor and Southall knew that Fischer was already in a stressful situation, and very frustrated at his predicament, but despite that knowledge, Taylor and Southall did nothing to deescalate the situation, and actually took steps calculated to agitate Fischer.
The partial video does not reveal the full scope of the interaction, which is critical to establishing the totality of circumstances in which the encounter unfolded. By only releasing a snippet of the encounter, the OHP may have created a false impression of what actually transpired. For example, what did Taylor and Southall say prior to the video? Did they threaten Fischer? Could Fischer have reasonably perceived that a confrontation would ensue once he ultimately abandoned his truck?
A related question involves the level of force used by Taylor and Southall.
Both troopers allegedly used deadly force, but it is not clear from the video that deadly force was warranted or justified under the circumstances.
The Fourth Amendment only permits law enforcement to use that degree of force which is reasonably necessary to accomplish the task of arrest. In this instance, Southall and Taylor used deadly force against an unarmed, non-fleeing suspect. Consequently, to comply with the Fourth Amendment, the use of deadly force in this instance is only justified if an objectively reasonable officer would believe that Fischer posed a significant threat of death or serious physical injury to the trooper or others.
As the Supreme Court has previously stated, few things in our case law are as clearly established as the principle that an officer may not “seize an unarmed, nondangerous suspect by shooting him dead” in the absence of “probable cause to believe that the [fleeing] suspect poses a threat of serious physical harm, either to the officer or to others.”
The key is whether it was reasonable for Taylor and Southall to believe that Fischer posed a threat of “serious physical harm,” and whether hand to hand combat in this circumstance could satisfy that standard. Other courts have concluded that hand to hand combat– in combination with other factors– may justify the use of deadly force, but the question is generally left for a jury to resolve.
A final issue involves training, and whether Taylor and Southall were adequately trained to handle these situations without resorting to deadly force. This only becomes an issue if the underlying use of force is found to violate the Fourth Amendment.
The Tulsa, Oklahoma attorneys at Bryan & Terrill are one of the few law firms in Oklahoma with experience evaluating cases for both victims and law enforcement. We routinely evaluate use of force events and excessive force cases and can provide you with a fair assessment of the issues and hurdles raised by your particular case.
Contact the Tulsa attorneys at Bryan & Terrill at 918-935-2777 for a case evaluation at no cost to you.