A Brief Recap and a Step Forward

Last time, I introduced 18 USC 242, Deprivation of Rights Under Color of Law, the only federal statute for investigating Excessive Use of Force claims. The “right” alleged to be “deprived” in these cases is the Fourth Amendment protection against unreasonable seizures by the government. The courts have interpreted “seizure” to include arrests as well as any physical contact or harm by law enforcement. As a reminder, 18 USC 242 does not limit itself to law enforcement or law enforcement situations, but I will do so here for our purposes.

I also tried in the last blog to clarify some of the more common myths and misconceptions I’ve encountered over the years. There are more, of course, and I will again try and address those as well before we’re done. We also touched on Deadly (Threat Force) versus non-Deadly Force (aka Compliance Force) and the standard for when Deadly Force is authorized and, consequently, not authorized. Lastly, I mentioned that unconstitutional, excessive, and unreasonable all mean the same thing. “SCOTUS”, by the way, stands for Supreme Court of the United States.

As a reminder, the standard for Use of Deadly Force is whether under the totality of circumstances an officer had probable cause to believe the person posed a threat of death or serious bodily harm to officers or others. If so, deadly force is authorized until the threat is contained. Often overlooked in these cases is the provision “to others”. This means if, for example, a subject, suspected of having a deadly weapon (or obtaining one) and having shown the recent willingness to use violence (such as having just committed a violent crime), is heading toward a place (residential area, shops, schools, etc.) where the subject could inflict substantial harm, the officer may still have the authority to use deadly force to prevent the subject from doing this. Again, it will turn on the facts. The point here is to remember that just because the officers themselves are no longer in immediate danger of harm, the authority to use deadly force might continue if “others” are still in harm’s way.

In this blog, I wish to focus on the four elements of 18 USC 242, especially elements 3 and 4: “Reasonableness” and “Willfulness”. Yes, I know the legal boring part. Sorry! I’ll use the same format as last time and try to keep the case names to a minimum!

Next time, in the last of this three part series, we’ll look at some more considerations and finish-up!

18 USC 242: Deprivation of Rights Under Color of Law

To charge a violation under 18 USC 242, ALL four elements must be met. Let’s Explore!

City and Cty. of S.F. v. Sheehan, 135 S. Ct. 1765 (2015)(citing other cases too)

Summary

In order for a criminal charge to be made under 18 USC 242, all four of the above elements have to be met. If an action is deemed “Objectively Reasonable” under the circumstances in Element 3, then Element 4 isn’t even considered. If, however, the Use of Force is deemed “Unreasonable” in Element 3, the the inquiry turns to whether it was “Willful” under Element 4. Willful is a subjective standard, meaning what did the officer actually believe, know, or do at the time. However, even though it is subjective, the officer’s reasoning for the Use of Force must still be reasonable under the circumstances.

Enough law and legalese for today? Yeah, I get it. The only thing left to do is that inevitable disclaimer, which, I’ll say here, applies to everything I write, whether I include it or not. Lawyers. Sigh.

Disclaimer

Although I worked for the FBI for many years, I’m now retired and no longer have any official or professional connection with the FBI. Nothing I feature on my website, blog, or other social media should in any way be taken as being from, or on behalf of, the FBI. I am solely responsible for the content in this and all my other blogs (unless somehow noted).

Also, while the information in my blogs is true and correct to the best of my knowledge, the information should not be relied upon alone. Readers are encouraged to explore further on their own and invited to (nicely) let me know if I have cited or inadvertently misstated something.

Lastly, none of my blogs are intended as legal advice either in general or for any particular case. Please consult an attorney or other appropriate legal advisor if necessary.

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