As a Charleston criminal defense attorney and a personal injury lawyer, I have tremendous respect for law enforcement. The job’s dangerous and it doesn’t pay enough. Officers in the field must make quick judgment calls, based on their training, to respond to endless life-threatening scenarios to protect themselves, the public, and the civil and criminal rights of any suspect. Plus, many suspects fight back and some even kill officers in the line of duty. However, there are instances were law enforcement officers may take matters too far by unlawfully using excessive or deadly force. In this broadcast of Legally Speaking, we cover issues of police brutality both from the view of criminal defense and from personal injury claims against law enforcement.
When Can Police Officers Use Force in South Carolina?
Unfortunately, there are no national standards or binding South Carolina policies that give clear guidance as to when law enforcement may use deadly force. Each law enforcement agency, here in South Carolina and elsewhere, set their own policies. What that means for the public are highly inconsistent approaches by each law enforcement agency, and a lack of protection against police brutality. The only legal guidance on the issue of force is the 1989 United States Supreme Court decision of Graham v. Conner. The Supreme Court stated that any claims that law enforcement officials used excessive force in the course of an arrest, an investigatory stop, or other “seizure” of a free citizen, must be analyzed under the Fourth Amendment’s “objective reasonableness” standard from the police officer’s perspective. Interestingly, the officer’s intent (good or bad) is irrelevant as to whether the force was excessive. Instead, the court uses the “Graham Factors” to decide whether force was reasonable by considering:
- The severity of the alleged crime;
- Whether the suspect posed an immediate threat to the safety of the officers or others; and
- Whether the suspect was actively resisting arrest or attempting to evade arrest by flight.
Real-World Example of Excessive Force
Many cases of excessive force make national news headlines on a regular basis. A few recent examples include the 2012 beating and death of a mentally ill, homeless man in California, the Tampa law enforcement officer who dragged a suspect across a parking lot, and the New Mexico police who fired shots at the van that held several minor children inside. Here is a link regarding a Florida nurse who was stopped for speeding in South Carolina. In this video, the officer can be seen pointing his gun at the driver, screaming at her, and making her lay face down on the side of the highway – all for a speeding ticket. In another video, South Carolina officers can be seen slamming a suspect (in custody and not resisting) against a wall and then grinning about the incident.
Recently, I dealt with a case involving a simple a traffic ticket. In this case, local law enforcement stopped a young mother for speeding. When the officer asked this mother for her driver’s license and registration, the woman argued with the officer that she didn’t deserve a ticket. The video from this traffic stop shows that instead of defusing the situation, the officer chose to argue back with the driver and call for backup. After the officer called for backup, the second officer on the scene demanded that the woman exit her vehicle. When this young mother refused, the officers sprayed her with pepper spray, beat her hands and arms with batons while the driver clutched the steering wheel, and ultimately several officers pulled her out of her car and forced her face down on the ground while they placed her in handcuffs. Again, all of this occurred over a speeding ticket. So, in one town, refusal to cooperate may have been met with calm reassurance that the officer needed to do his duty to write a ticket. Yet, in this case, when the driver argued about her speeding the ticket, she was sprayed and beaten. In the end, many unconstitutional uses of force by law enforcement go uncompensated and undeterred.
What Can Be Done to Prevent or Reduce Police Brutality in South Carolina?
This first point should be obvious – NEVER resist arrest. Whether you believe that law enforcement does not have the right to arrest you, nothing good can come from resisting an arrest even if the arrest turns out to be unlawful. As a criminal defense attorney in Charleston, I advise my clients to comply with law enforcement and to exercise their right to REMAIN SILENT. Don’t argue, don’t struggle, and never make an offensive move against law enforcement. If the arrest turns out to be unlawful, then a skilled defense attorney can help you get the charge dismissed.
Second, if you have been subject to police brutality, speak with a qualified attorney immediately. As a personal injury lawyer in Charleston, I’ve handled several cases involving police brutality, and I can assure you that it is important to get a quick jump on preserving evidence and interviewing witnesses that are necessary to prove any case of this type.
Third, there needs to be rigorous psychological screen of potential candidates for law enforcement and regular follow-up screening for veterans. Ironically, some of the very traits that make many law enforcement officers good at their job also become the very traits that lead them to later become potential abusers of their position.
Finally, one step to prevention is accountability. What needs to be done on a state, if not national, level is to establish an independent agency that is tasked with investigating claims of police brutality. In most situations, law enforcement investigates law enforcement. In other words, the fox is watching the henhouse. Further, there are no good public records being gathered regarding police brutality in South Carolina. Additionally, in many of the cases I’ve handled, there had been previous “red flags” in the form of complaints by other citizens against the officers. However, these warning signs were overlooked by the officer’s chain of command until things grew out-of-hand, someone was seriously injured or killed, and the officer’s conduct could no longer be ignored.
Where to Watch Future Episodes of Legally Speaking
1) You can watch live on Google Plus where you can engage during the live broadcast by commenting and asking questions of the hosts and guest speakers. Click here to open and join the Community Page for Legally Speaking where you’ll get notice of upcoming episodes and where you can comment, ask questions of featured guests, and add your ideas for future shows. Or, you can follow (circle) Stephan Futeral on Google Plus and receive upcoming Legally Speaking event notices. Thanks to everyone for tuning in to Legally Speaking!
2) You can watch Legally Speaking on Youtube by clicking here to subscribe to Stephan Futeral’s channel.