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Kukuforguns
06-10-2015, 02:46 PM
Here's a link (http://media.wix.com/ugd/b2dd23_1139195787bb46dea029681a32b57377.pdf) to a copy of the Los Angeles Board of Police Commisioners' written summary of the Ezell Ford shooting.

Based on my reading of the report, I have some concerns regarding Officer A's initial use of force.

As set forth in the report, Officers A and B got out of their vehicle to conduct a consensual investigation of Ford. After exiting the vehicle, Officer A stated: "Hey, let me talk with you." Ford looked at the officers and continued walking away. Officer A then asked the Subject, “Hey, do me a favor, get your hands out of your pockets.” The testimony here is contradictory, but it seems as though Ford stopped, faced the officers and did take his hands out of his pockets/waistband area temporarily (this action allowed Officer B to conclude that there were no bulges in Ford's clothing and he holstered his weapon which he had previously deployed). Ford then turned around and continued to walk away from the officers at an increasing rate of speed (but not running). Ford then leaned forward away from the officers and toward some bushes and Officer A formed the opinion that Ford was discarding narcotics and determined that he had reasonable cause to detain Ford. Up until this point in time, Officer A was treating the encounter as consensual. Without saying anything more, Officer A went hands on to handcuff Ford. At this point, the situation goes critical and both officers shoot Ford.

"A police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest." U.S. v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977); see also U.S. v. Richards, 500 F.2d 1025 (9th Cir. 1974); People v. Johnson, 231 Cal.App.3d 1, 13 (1991).

It seems to me that (assuming there was objectively reasonable grounds to believe Ford was engaged in criminal behavior) before Officer A used force or decided to handcuff Ford, he should have ordered Ford to stop. Immediately going hands on to handcuff Ford without giving Ford an opportunity to comply with a command seems to be inconsistent with the law regarding investigatory stops.

Pup town
06-10-2015, 03:03 PM
Based on my reading of the report, I have some concerns regarding Officer A's initial use of force.


Thank you for your concern.


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When did this forum become the place to second guess and armchair quarterback every use of force in the nation?

KevinB
06-10-2015, 03:49 PM
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When did this forum become the place to second guess and armchair quarterback every use of force in the nation?


You tell me, then we will both know.

SecondsCount
06-10-2015, 05:31 PM
Thank you for your concern.


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When did this forum become the place to second guess and armchair quarterback every use of force in the nation?

Just drive on by.

TSH
06-10-2015, 10:01 PM
Immediately going hands on to handcuff Ford without giving Ford an opportunity to comply with a command seems to be inconsistent with the law regarding investigatory stops.

Which Penal Code section is it inconsistent with?

Kukuforguns
06-10-2015, 10:15 PM
Which Penal Code section is it inconsistent with?

The 4th Amendment.

TSH
06-10-2015, 11:01 PM
The 4th Amendment.


Where's the Fourth Amendment violation?

Kukuforguns
06-10-2015, 11:55 PM
Where's the Fourth Amendment violation?

Going hands on (use of force) in an effort to handcuff (significant deprivation of liberty) Ford before giving him an order to stop (or any other order).

TSH
06-11-2015, 12:29 AM
Going hands on (use of force) in an effort to handcuff (significant deprivation of liberty) Ford before giving him an order to stop (or any other order).

Does the Fourth Amendment (or case law) require giving an order before detaining someone based on reasonable suspicion?

Kukuforguns
06-11-2015, 12:48 AM
Does the Fourth Amendment (or case law) require giving an order before detaining someone based on reasonable suspicion?

From the original post:


"A police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest." U.S. v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977); see also U.S. v. Richards, 500 F.2d 1025 (9th Cir. 1974); People v. Johnson, 231 Cal.App.3d 1, 13 (1991).

HCM
06-11-2015, 07:03 AM
Does the Fourth Amendment (or case law) require giving an order before detaining someone based on reasonable suspicion?

Per 4th ammendment case law, an order or warning "if feasible" prior to a seizure, so in a quickly evolving situation it would not be required.

If I make contact with "sumdoode" and I see him trying to ditch or destroy evidence of a crime it is reasonable to go hands on immediately and stop his actions.

Kukuforguns
06-11-2015, 10:11 AM
Per 4th ammendment case law, an order or warning "if feasible" prior to a seizure, so in a quickly evolving situation it would not be required.

If I make contact with "sumdoode" and I see him trying to ditch or destroy evidence of a crime it is reasonable to go hands on immediately and stop his actions.

If you see sumdoode trying to ditch/destroy evidence of a crime, then you have probable cause and can arrest the individual. Here, the officer believed he had RAS of criminality, but could not see Ford actually ditching anything, let alone evidence of a crime.

Do you have a citation to California/9th Circuit (preferentially these jurisdictions, but any would be interesting to read) that an officer can go straight to handcuffing a subject based on RAS without a prior order if it is not feasible to give the order? I am aware of one situation in which officers might be allowed to use force to stop a person based upon RAS without a prior order - per Illinois v. Wardlow a subject running away from police in a high crime area (Ford was in a high crime area but was not running) can be stopped. The Court glossed over how the police stopped Wardlow and the SCOTUS opinion does not discuss whether the police ordered him to stop or if the police went straight to hands on (the Illinois Sup. Ct. opinion states the officer stopped Wardlow in uniform but without announcing his office or asking any questions).

HCM
06-11-2015, 10:38 AM
If you see sumdoode trying to ditch/destroy evidence of a crime, then you have probable cause and can arrest the individual. Here, the officer believed he had RAS of criminality, but could not see Ford actually ditching anything, let alone evidence of a crime.

Do you have a citation to California/9th Circuit (preferentially these jurisdictions, but any would be interesting to read) that an officer can go straight to handcuffing a subject based on RAS without a prior order if it is not feasible to give the order? I am aware of one situation in which officers might be allowed to use force to stop a person based upon RAS without a prior order - per Illinois v. Wardlow a subject running away from police in a high crime area (Ford was in a high crime area but was not running) can be stopped. The Court glossed over how the police stopped Wardlow and the SCOTUS opinion does not discuss whether the police ordered him to stop or if the police went straight to hands on (the Illinois Sup. Ct. opinion states the officer stopped Wardlow in uniform but without announcing his office or asking any questions).

I am not an attorney, though your profile shows you are. Jeff Chudwin, the author of the article linked below is both an experienced police officer and an attorney. He does a great job breaking down verbal warnings in the context of fourth amendment seizures.

http://www.lawofficer.com/articles/print/volume-6/issue-1/tactical-ops/verbal-warning.html

As you know both detentions and physical use of force are seizures under the fourth amendment. If, as outlined in Tennessee v. Garner, verbal warnings are only required " if feasible" for the application of deadly force, arguably the most significant type of seizure why wouldn't a similar standard apply to a lesser seizure such as putting hands on someone to handcuff them? In the real world there are times to talk and there are times to act.

This also speaks to mindset. It is everything forbidden that is not specifically allowed or or is everything allowed that is not expressly forbidden? As you said yourself, in some related court cases the court did not find it significant enough to specify how the police stopped the suspect. I think it would default to the standard for fourth amendment seizures, which is is it reasonable given the totality of the circumstances.

As for the Ninth Circuit, I worked in California for seven years and there is a reason I left the Alice in Wonderland upside down world of the Ninth Circuit. There is also a reason they are the most reversed circuit.

TSH
06-11-2015, 10:47 AM
If you see sumdoode trying to ditch/destroy evidence of a crime, then you have probable cause and can arrest the individual. Here, the officer believed he had RAS of criminality, but could not see Ford actually ditching anything, let alone evidence of a crime.

If I have reasonable suspicion to detain somebody, I have no requirement to inform them first - period, full stop, end of story. Many times, a consensual encounter elevates to detention without the person even knowing it happened. I can also cuff somebody during a detention if I can articulate the need to. This does not convert the detention into an arrest. Again, I do not need to warn them before I cuff them, but I should tell them they are not under arrest and the reason I have cuffed them afterwards. If we had to warn everyone before we cuffed them, use of force incidents would skyrocket because that is usually when people want to put up a fight.

Look, it might have been wise to tell him he was detained, but I don't know because I wasn't there. There was no requirement for them to do so, however. Besides, in the eyes of the court the detention doesn't start until the potential detainee submits to the authority of the officer, so they probably had to cuff him just to detain him. That is something officers should try to avoid, but if you need to then you should.



Do you have a citation to California/9th Circuit (preferentially these jurisdictions, but any would be interesting to read) that an officer can go straight to handcuffing a subject based on RAS without a prior order if it is not feasible to give the order? I am aware of one situation in which officers might be allowed to use force to stop a person based upon RAS without a prior order - per Illinois v. Wardlow a subject running away from police in a high crime area (Ford was in a high crime area but was not running) can be stopped. The Court glossed over how the police stopped Wardlow and the SCOTUS opinion does not discuss whether the police ordered him to stop or if the police went straight to hands on (the Illinois Sup. Ct. opinion states the officer stopped Wardlow in uniform but without announcing his office or asking any questions).

How about you show us a cite that says we shall warn somebody. I will point out that the Supreme Court made it clear in Hodari that a person is not seized until they are physically stopped (in the case of Hodari, tackled). I will also point out that PC 148 says a detainee has no right to resist.

LSP972
06-11-2015, 10:59 AM
Here, the officer believed he had RAS of criminality, but could not see Ford actually ditching anything, let alone evidence of a crime.



And you were there, right? That's how you know what he saw, or didn't see?

This bullshit is why I don't participate in these threads. Hindsight is always 20/20, and the clarity of said hindsight is always greater in those who have never laid hands on a recaltricant suspect, or had to make a split-second decision that could mean life or death for somebody.

.

Kukuforguns
06-11-2015, 11:08 AM
And you were there, right? That's how you know what he saw, or didn't see?

My comments about what Officer A saw and didn't see are taken directly from his statements. So, you are right. I don't know what he saw. I just believe that he was telling the truth when he discussed what he saw.

UNK
06-11-2015, 11:09 AM
Hindsight is always 20/20, and the clarity of said hindsight is always greater in those who have never laid hands on a recaltricant suspect, or had to make a split-second decision that could mean life or death for somebody.

.
Awesome

ford.304
06-11-2015, 11:14 AM
You tell me, then we will both know.

Serious question -- do you know somewhere else on the internet that would be a good place? I can see why one would get sick of them.

I read these kind of threads because I want someone who knows police work to tell me why an incident is reasonable. I've already read everyone on the "other" side try to get me riled up over the injustice of the incident, and my inexperienced intuition sometimes agrees with them. But I know it is inexperienced.

The only people who can explain *why* an incident like this is reasonable are cops. The cops at that agency will make a statement, but they will also be in full CYA mode. Uninvolved officers and trainers whose opinions I respect are the best place to come for this sort of information. Some of the guys on this forum have done an *excellent* job of that, and have greatly expanded my understanding of how these events occur.

The end result/goal should either be an "oh, I see how that is actually reasonable" or at least a "I see why that was reasonable under current law/doctrine, but I feel the current law strikes the wrong balance between competing goals of, for example, officer efficiency and suspect rights."

Maybe proving people wrong gets old... but do you have an idea for where and how else this education can occur?

KevinB
06-11-2015, 01:51 PM
Serious question -- do you know somewhere else on the internet that would be a good place? I can see why one would get sick of them.

Maybe proving people wrong gets old... but do you have an idea for where and how else this education can occur?

To me, it is in the method of presentation.

I read the OP's comments as a critique, not a question. As well to me his BLUF on the incident was rather misleading.


I read the article/report, and I think the point of contention with the OP is that it appears to me at least that he feels that their is ALWAYS duty to inform when a consensual encounter turns to detention, or arrest, regardless of the facts of the incident. The OIG appears to agree with the OP that there may not have been the RS (Reasonable Suspicion - what the rest of the world calls Reasonable Articulable Suspicion [RAS]) to make the initial detention attempt. But on most planets the actions of the suspect upon contact as described by the officers would be viewed as RAS for investigative detention.
However that issue to me is moot, as we will never know due to the actions of the deceased suspect, but in the interest of your comment.

JLW has an excellent guide on the subject stickied in this forum. here (https://pistol-forum.com/showthread.php?12249-The-2-3-4-Rule)

Reasonable Articulable Suspicion (RAS): A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience that criminal activity is afoot. Case Reference: [I]Ornelas v. US, 517 US 691, 95-5259 (1996)

So given the criteria for RAS:
Subject is seen walking away from a group of known gang members who deal illegal narcotics, and other illicit drugs.
Officers attempt a consensual encounter
Subject makes furtive movements, attempts to evade, and then appears to be stashing material in a hedge/bush.

Keeping in mind the criteria for RAS, and the officers statements - what do you think?

If the subject had kept moving - and ignored officers, then it would be a different story - but he did not.



Apologies for the multiple edits, I cannot spell ;)

TSH
06-11-2015, 02:03 PM
I read the OP's comments as a critique, not a question.

That is the correct way to read it.

This "I'm just a concerned citizen" game isn't going to fool a whole lot of people, they just haven't figured that out yet.

I have more respect for the protestors; at least they're honest about their contempt and second-guessing.

Kukuforguns
06-11-2015, 03:36 PM
If I have reasonable suspicion to detain somebody, I have no requirement to inform them first - period, full stop, end of story. I don't disagree with this.

I can also cuff somebody during a detention if I can articulate the need to. This does not convert the detention into an arrest. I'd narrow your statement slightly to state that you can handcuff somebody during a detention if you can articulate a reasonable need to do so. I think that was implied in your statement, so no disagreement.

Again, I do not need to warn them before I cuff them, but I should tell them they are not under arrest and the reason I have cuffed them afterwards. If we had to warn everyone before we cuffed them, use of force incidents would skyrocket because that is usually when people want to put up a fight. Again, no disagreement. I do note that Officer A did not articulate why he believed handcuffs were necessary here.
Besides, in the eyes of the court the detention doesn't start until the potential detainee submits to the authority of the officer, so they probably had to cuff him just to detain him. That is something officers should try to avoid, but if you need to then you should. This is where my concern is centered. You state Officer A probably had to cuff him just to detain him. Based on the facts articulated by Officer A (and Officer B), I don't see this. Ford had (during the consensual portion of the incident when he had no obligation to do so) complied with Officer A's request to show his hands by stopping, turning around and removing his hands from his pockets. This allowed Officer B to observe that there were no suspicious bulges in Ford's clothing and decreased the likelihood of a deadly force encounter to the point Officer B holstered his weapon. Ford was never given a chance to voluntarily submit to Officer A's authority.

How about you show us a cite that says we shall warn somebody.

I've done so. Here are the cites and a quote:

"A police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest." U.S. v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977); see also U.S. v. Richards, 500 F.2d 1025 (9th Cir. 1974); People v. Johnson, 231 Cal.App.3d 1, 13 (1991).

Officers may use the minimal amount of force necessary once it becomes apparent that an individual will not comply with a lawful order to stop. This presupposes a lawful order to stop.


I will point out that the Supreme Court made it clear in Hodari that a person is not seized until they are physically stopped (in the case of Hodari, tackled).
I disagree. The quote from the court is that seizure "requires either physical force (as described above) or, where that is absent, submission to the assertion of authority." In other words, seizure can occur absent physical control where there is submission to the assertion of authority.

I will also point out that PC 148 says a detainee has no right to resist.
Not exactly. Subsection (a) provides:

Every person who willfully resists . . . any public officer, peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . shall be punished . . . "
Subsection (f) provides:

This section shall not apply if the public officer, peace officer, or emergency medical technician is disarmed while engaged in a criminal act.
But, this issue is a separate inquiry from the inquiry of whether Officer A acted inappropriately by going hands on in an attempt to handcuff Ford before giving an order to stop.

Kukuforguns
06-11-2015, 04:01 PM
As you know both detentions and physical use of force are seizures under the fourth amendment. If, as outlined in Tennessee v. Garner, verbal warnings are only required " if feasible" for the application of deadly force, arguably the most significant type of seizure why wouldn't a similar standard apply to a lesser seizure such as putting hands on someone to handcuff them? In the real world there are times to talk and there are times to act.
As you note, in Garner, the Court was addressing the use of lethal force. In that context the Court stated:

Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
The threat to society and the officer is much more acute when the subject is a violent criminal. Given this acute threat, the "if feasible" standard makes sense. The threat to society of a tweeker getting away with a dime bag is much less acute than a violent criminal escaping and the justification for limiting a suspect's rights is correspondingly less. In any event, Officer A articulated no evidence to support a conclusion that Ford was violent before Officer A went hands on. Also note that the Court discussed two scenarios: (1) a suspect threatening an officer with a weapon; and (2) probable cause the suspect committed or threatened to commit a violent crime. In the Ford incident, not only was there no evidence of violence or threat to an officer, but there was at best RAS (the commissioners found no RAS) of drug possession. An officer has greater authority where there is probable cause than where there is only RAS.


As for the Ninth Circuit, I worked in California for seven years and there is a reason I left the Alice in Wonderland upside down world of the Ninth Circuit. There is also a reason they are the most reversed circuit.Your (and my) personal feelings about the Ninth Circuit aside, the Ford incident took place in the Ninth Circuit.

Irrelevant observation: By some metrics, the Sixth Circuit is now the most reversed Circuit.

KevinB
06-11-2015, 04:13 PM
Much more pleasant discussion now.

As I mentioned in my PM to you -- I think that both Officers after being involved in the OIS, where more focused on the events of the struggle that resulted in the shootings, than the events that led to it -- I believe that they could and would have been able to offer RAS, IF the incident had not turned lethal.

TSH
06-11-2015, 04:35 PM
stuff

You used a lot of words to say "The way the police operate doesn't fit with my worldview, so I'll throw a bunch of sh*t against the wall and see what sticks."

I'd say you have provided yet another example of why people without law enforcement experience shouldn't have a seat at the "use of force" round table.

Kukuforguns
06-11-2015, 04:57 PM
As I mentioned in my PM to you -- I think that both Officers after being involved in the OIS, where more focused on the events of the struggle that resulted in the shootings, than the events that led to it -- I believe that they could and would have been able to offer RAS, IF the incident had not turned lethal.

First, I hadn't previously seen your PM. I wasn't ignoring it.

Second, I was/am not convinced that the commissioners' conclusion regarding lack of RAS is correct. That's why I am focused on Officer A's decision to handcuff Ford rather than Officer A's decision to detain Ford. They are different decisions that require different support. I'm assuming that there was RAS that Ford was trying to dump contraband and that an investigatory detention was appropriate. Even if the "if feasible" standard were applicable to investigatory stops, I saw nothing in Officer A's testimony to indicate why it would not have been feasible to yell "Stop/Freeze" before going hands on. Reading the link to the article by the officer/lawyer was useful in that the author mentioned that speaking intelligibly during a high stress incident can be difficult. Based on Officer A's testimony, that did not appear to be the case during Officer A's interaction with Ford. Neither officer thought Ford was armed and Officer A had already spoken to Ford.

Accordingly, I do not see any evidence that giving a command was not feasible. Next, Officer A not only decided to detain Ford, and not only did Officer A go hands on, he was trying to handcuff Ford. This is a significant deprivation of liberty and there was no testimony from Officer A to indicate why he felt it was necessary to handcuff Ford.

Kukuforguns
06-11-2015, 05:11 PM
I'd say you have provided yet another example of why people without law enforcement experience shouldn't have a seat at the "use of force" round table.The Supreme Court, the circuit courts, the district courts, and their state court counterparts are dominated by people without law enforcement experience. The Constitution was drafted by people without law enforcement experience. They all have/had a seat at the table. I'm a citizen of and subject to the enforcement of the laws of the United States. I'm a commissioner overseeing my city's police department. I have a seat at the table. That's reality. There are countries where the government does not derive its powers from the consent of the governed. Subjects in those countries do not have a seat at the table. Where would you rather live? I know I like living in a country where I have a seat at the table.

TSH
06-11-2015, 05:56 PM
The Supreme Court, the circuit courts, the district courts, and their state court counterparts are dominated by people without law enforcement experience. The Constitution was drafted by people without law enforcement experience. They all have/had a seat at the table. I'm a citizen of and subject to the enforcement of the laws of the United States. I'm a commissioner overseeing my city's police department. I have a seat at the table. That's reality. There are countries where the government does not derive its powers from the consent of the governed. Subjects in those countries do not have a seat at the table. Where would you rather live? I know I like living in a country where I have a seat at the table.

Hahaha.

Okay, man. I'll tell you what: I wish you nothing but success in your future political career, and I look forward to watching you on CNN as you throw some cop under the bus because he ended up offending your delicate sensibilities. You are clearly built for it.

45dotACP
06-12-2015, 01:37 AM
Nevermind

Hambo
06-12-2015, 06:32 AM
Maybe proving people wrong gets old...

Yes, it does.


but do you have an idea for where and how else this education can occur?

Law school.

TAZ
06-12-2015, 10:37 PM
In my non LEO, non lawyer experience when officer x calls out to you claiming that he would like to talk that's pretty much a polite verbal command, so I'm not sold on the whole concept that Ford wasn't afforded ample time to comply with the officers requests. I do have to wonder though how consensual an encounter this was given that one officer exited with gun drawn. No matter as that fact should have hammered the idea into Fords head that the cops were serious about wanting to talk to him.

Im consistently dumbfounded by people who feel like they can ignore cops and think that doing so will end well. Has common sense pretty much left the planet?

We are on a pretty vicious cycle here. People act like idiots and societies response is to dog pile cops having to deal with stupid to the point that we are forcing departments into stopping any police work and simply become 100% reactionary. NOT where we want to be. Believe me, having grown up behind the iron curtain I have a first hand understanding of police state, so I'm not going to be all rah rah let the cops run rampant. There has to be balance between LEO doing their job and non LEO living free. It's not impossible, but it does require some brain cell usage. This whole "room to destroy" mentality is going to have bad consequences, and if you're afraid of police state; just wait for the backlash to the let destroy mentality. The potential extreme pendulum swings are not a good thing .