Legal Implications Legal Implications on the Use of Force on the Use of Force

During a During a Demonstration Demonstration LEGAL OFFICERS SECTIONLEGAL OFFICERS SECTION

IACP IACP Mark H. NewboldMark H. Newbold

Deputy City Attorney – PoliceDeputy City Attorney – PoliceCharlotte-Mecklenburg Police DepartmentCharlotte-Mecklenburg Police Department

THE PROBLEMTHE PROBLEMCompeting Constitutional Competing Constitutional

Values Values

THE PROBLEMTHE PROBLEM

POLICE RESPONSEPOLICE RESPONSE

POLICE RESPONSEPOLICE RESPONSE

THE RESULTTHE RESULT

THE RESULTTHE RESULT

THE RESULTTHE RESULT

THE HEADLINETHE HEADLINE

Boston Police to Boston Police to Use a Weaker Use a Weaker

Pepper-Ball GunPepper-Ball Gun Officials Will Switch Crowd-Officials Will Switch Crowd-Control Weapon Until Probe of Control Weapon Until Probe of

Red Sox Fan's Death EndsRed Sox Fan's Death Ends

THE HEADLINE THE HEADLINE

Former U.S. Former U.S. Attorney to Probe Attorney to Probe

Boston Police Boston Police Pepper Ball Pepper Ball

ShootingShooting

THE HEADLINETHE HEADLINE

Oakland: ‘Less Oakland: ‘Less than Lethal’ than Lethal’

Weapons Come Weapons Come Under ScrutinyUnder Scrutiny

Traditional Use of Force ModelsTraditional Use of Force ModelsDo They Work Within the First Do They Work Within the First

Amendment?Amendment?

SourcesSources 1414thth Amendment’s “Shocks the Amendment’s “Shocks the

Conscience” Conscience” 44thth Amendment’s “Objective Amendment’s “Objective

Reasonableness”Reasonableness” State StatutesState Statutes

““Shocks the Conscience”Shocks the Conscience”Rochin, Johnson v. Glick, Rochin, Johnson v. Glick,

Sacramento v. LewisSacramento v. Lewis

The need for the application of the forceThe need for the application of the force The extent of the injuryThe extent of the injury Applied in a good faith effort to Applied in a good faith effort to

maintain or restore discipline or maintain or restore discipline or maliciously and sadistically for the very maliciously and sadistically for the very purpose of causing harm.purpose of causing harm.

Shocks the conscience of a Shocks the conscience of a contemporary Judge.contemporary Judge.

Objective ReasonablenessObjective ReasonablenessTerryTerry, , Garner,Garner, GrahamGraham

The right to use force during a search The right to use force during a search or seizure is constitutional or seizure is constitutional

The reasonableness of force is The reasonableness of force is determined by the facts and determined by the facts and circumstances of eachcircumstances of eachcase. case.

The reasonableness of a particular use The reasonableness of a particular use of force must be judged from the of force must be judged from the perspective of a reasonable officer on perspective of a reasonable officer on the scene and at the moment of its the scene and at the moment of its occurrence. occurrence.

FIRST AMEMDMENT FIRST AMEMDMENT BACKDROP –ESSENTIAL BACKDROP –ESSENTIAL

PRINCIPLESPRINCIPLES Principle # 1Principle # 1

Picketing and demonstrations are Picketing and demonstrations are highly protected.highly protected.Edwards v. South Carolina, 83 S. Edwards v. South Carolina, 83 S. Ct. 680 (1963)Ct. 680 (1963)

FIRST AMEMDMENT FIRST AMEMDMENT BACKDROP –ESSENTIAL BACKDROP –ESSENTIAL

PRINCIPLESPRINCIPLES Principle # 2Principle # 2

Since time immemorial city streets and Since time immemorial city streets and sidewalks are public forasidewalks are public foraUnited States v. Grace, 103 S.Ct United States v. Grace, 103 S.Ct 1702 (1983)1702 (1983)

First Amendment BackdropFirst Amendment BackdropEssential PrinciplesEssential Principles

Principle #3Principle #3 Governmental Restrictions are subject Governmental Restrictions are subject

to “a high degree of scrutiny”to “a high degree of scrutiny”NAACP v. City of Richmond,NAACP v. City of Richmond, (9(9thth Cir. 1984)Cir. 1984)

United States v. Grace, 103 S.Ct United States v. Grace, 103 S.Ct 1702 (1983)1702 (1983)

First Amendment BackdropFirst Amendment BackdropEssential PrinciplesEssential Principles

Principle # 4 Principle # 4 The Government may not prohibit angry The Government may not prohibit angry

or inflammatory speech in a public or inflammatory speech in a public forumforumBrandenburg v. Ohio, 89 S.Ct. Brandenburg v. Ohio, 89 S.Ct. 1827(1969)1827(1969)

First AmendmentFirst Amendment BackdropBackdropEssential PrinciplesEssential Principles

Principle # 5Principle # 5 Speech that stirs passions, resentment Speech that stirs passions, resentment

or anger is fully protected by the First or anger is fully protected by the First Amendment.Amendment. Terminiello v. Chicago, 69 S.Ct. 894 (1949)Terminiello v. Chicago, 69 S.Ct. 894 (1949)

First Amendment BackdropFirst Amendment BackdropEssential PrinciplesEssential Principles

Principle # 5Principle # 5 Subsequent punishment is favored over Subsequent punishment is favored over

suppression of Speech.suppression of Speech. Carrol v. President and Com’rs of Princess Carrol v. President and Com’rs of Princess

Anne, 89 S.Ct. (1968)Anne, 89 S.Ct. (1968)

First Amendment BackdropFirst Amendment BackdropEssential PrinciplesEssential Principles

Principle # 6Principle # 6 Enjoining First Amendment activities Enjoining First Amendment activities

before a demonstration poses a clear before a demonstration poses a clear and present danger is presumptively a and present danger is presumptively a First Amendment violation.First Amendment violation. Brandenburg v. Ohio, 89 S. Ct. 1827(1969)Brandenburg v. Ohio, 89 S. Ct. 1827(1969)

Passive Resistance and Passive Resistance and The Use of ForceThe Use of Force

The Passive Protestor DilemmaThe Passive Protestor Dilemma Terry v. Ohio: The right to make an Terry v. Ohio: The right to make an

arrest implies the right to use some arrest implies the right to use some degree of force or coercion to effect the degree of force or coercion to effect the arrest.arrest.

Graham3 factor test : “and whether Graham3 factor test : “and whether activelyactively resistingresisting arrest or attempting arrest or attempting to evade arrest by flight”to evade arrest by flight”

Passive Protestor Passive Protestor DilemmaDilemma

Lower CourtsLower Courts Amnesty International v. Town of West Amnesty International v. Town of West

Hartford, 361 F.3d 113 (2Hartford, 361 F.3d 113 (2ndnd Cir. 2004) Cir. 2004) Headwaters Forest Defense v. City of Headwaters Forest Defense v. City of

Humboldt, 240 F.3d 1185 (9Humboldt, 240 F.3d 1185 (9thth Cir. Cir. 2001).2001).

Lamb v. City of Decatur, 947 F. Supp. Lamb v. City of Decatur, 947 F. Supp. 1261 (1996)1261 (1996)

Order to Disperse Order to Disperse Dilemma Dilemma

Lawful Order to Disperse CrucialLawful Order to Disperse Crucial Statutory interpretation must be Statutory interpretation must be

consistent with 1consistent with 1stst Amendment Amendment Principles.Principles. ExampleExample

NCGS 14-288.2NCGS 14-288.2 NCGS 14-288.5 NCGS 14-288.5

Police definition of imminent threat vs Police definition of imminent threat vs language in Brandenburglanguage in Brandenburg

Developing a Protocol Developing a Protocol For Less LethalFor Less Lethal

Get a seat at the table.Get a seat at the table. Identify stakeholdersIdentify stakeholders Conduct an LLW/RCA audit and Conduct an LLW/RCA audit and

understand how these devices understand how these devices work.work.

ProtocolProtocol

Adopt a protocol for the use of Adopt a protocol for the use of these devicesthese devices

Legal TrainingLegal Training Understand the Pros and Cons of Understand the Pros and Cons of

Each DeviceEach Device . . Use of Force Investigations Use of Force Investigations

conducted whenever usedconducted whenever used Educate the PublicEducate the Public

Just when you think you Just when you think you have everything under have everything under

control . . .control . . .