This Court Finds You Guilty: Implications of the Use of Force for the Law Enforcement Professional

Many New York City cops know officers who have faced criminal prosecution as a result of having used force in the line of duty. Most of these prosecutions involve cases where the officer involved discharged a firearm resulting in the death of an individual. Prosecutions for firearms discharges by police in non-fatal injuries incidents are much less common. Regardless of the injury, every officer knows that when they fire their weapon an exhaustive investigation will result; nevertheless, many officers find themselves in a state of disbelief when it happens to them. When officers find themselves facing prosecution for what they felt was a routine use of non-lethal force, they often suffer a debilitating sense of disbelief over the consequences of their action. The purpose of this column is to examine the fallout from the use of “non-lethal force” resulting in a death or injury.

Non-lethal force is most often used by police to overcome resistance and effect arrest, not to counteract the use of deadly force against them or a third party. This fact serves to contribute to their shock and befuddlement when they find they are facing criminal prosecution when a death results since the officer never intended to employ deadly force.

Although police are trained in Law and “Use of Force” issues at the Police Academy, I suspect that many of them view their education in theses areas abstractly, never really considering the possibility that they might face charges after employing what they have learned in the line of duty. So, can officers avoid falling into the “Use of Force Trap” and what is the limit of the possible fallout from its use? The first step in avoiding any problem is raising your awareness of it. To do this, I will put you in the shoes of a police officer who after being indicted, tried, and convicted was sent to prison as a result of having exercised what the officer believed was a routine application of non-lethal force in the discharge of the officer’s official duties.

First, be aware that any use of non-lethal or deadly Force, can land you in hot water regardless of whether a death results. Suffice it to say however, if death does result, the responsible officer stands a greater chance of being prosecuted for having used the force employed. Among the best known examples of use of non-lethal force by police resulting in the criminal prosecutions of the officers involved are the Rodney King case in LA and the Abner Louima case in NYC. In the both instances the officers involved were incarcerated after trial. And in the both cases the suspects survived the non-lethal force employed by the imprisoned officers.

The second step is acceptance. You may think that your conduct constitutes a proper use of non-lethal force, but if a death results from it, the prosecutor, your law enforcement agency, your municipal employer and a substantial segment of the public will not. The sooner you accept that fact the better off you will be. It will allow you to focus and become actively involved in your own defense rather than simply hoping that you will be vindicated. Knowing from the start exactly what it is you stand to lose if convicted serves to prepare you should things not go well at trial.

Any prosecution of a police officer for excessive use of force, particularly if a death is involved, will be treated as a high-profile event by the media and every aspect of your life will be put on public display. The prosecutors, and the police agency’s own internal affairs division will leave no stone unturned in their efforts to find a “smoking gun” and to discredit you in order to achieve a successful prosecution. In addition, the civil attorney likely to be retained by the surviving family members to sue you will do the same in order to win a substantial judgment against you. Your family, friends, neighbors and co-workers are likely to be questioned about your past conduct and personality, often resulting in your reputation being dragged through the mud by the press.

You are also likely to suffer sleepless nights as grand jury proceedings leading to your indictment take place. And as the days, weeks and months pass during which pre-trial and evidentiary motions are filed by the defense and prosecution, you realize that you have become lost in a battle between forces larger than the case itself. After the passage of a year or longer, the trial date will finally arrive. Most defendants can avoid this tedious process by accepting a plea bargain but for a police officer it means the automatic forfeiting of your pension and career because of the resulting criminal conviction.

If you are found guilty at trial, the day sentence is pronounced will likely be the most devastating of your life as you surrender to Correctional Services personnel to begin serving your sentence. Years slowly pass while you cling to the slim hope of vindication on appeal. When the appellate courts strike down your appeal after months of waiting, you feel your life force waning as your hope for an early release and return home is dashed.

The years pass and you develop a routine. Up in the morning and run the track; read the paper; have lunch; hit the gym in the afternoon; catch the evening news; work your prison job; read a bit; then to sleep to do it all over again the next day. One day your name is called to report to R&D (receiving and discharge). It’s your day to go home. You’re apprehensive. You’ve prayed for this day for an eternity; now that it’s here you’re not sure you want to leave. You’ve lived the last decade of your life in less than half a square mile. You worry what it will it be like outside. How much has the world changed? Will you walk out of a restaurant forgetting to pay your bill after not having had to pay a check in ten years? A correction officer walks you to the front gate and wishes you “good luck” as the Lt. asks you your name and number one last time. You leave certain that everyone you meet “knows” who you are. You meet your Probation Officer and he explains the rules. You are hopeful you’ll succeed and get on your feet quickly. You find however that no one wants to hire an ex-con convicted in a high profile police brutality case ten years earlier. You ask yourself: “will it ever end? And then you ask yourself “why did you ever want to become a Police Officer? You can’t remember.

Frank Livoti, a former New York City Police Officer, explains the possible unintended consequences of the use of non-lethal force by a police officer in effecting an arrest. The purpose of his column to is to reinforce the importance of strict adherence to departmental guidelines in the application of all levels of force when acting in the performance of assigned duties and the possible impact on a Police Officer when things go awry.

Frank Livoti is an authority on use of force issues by public and private law enforcement personnel; he also serves as a speaker and trainer for The Foreseeable Risk Analysis Center and a contributing columnist on law enforcement and related issues.

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