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Remaining reasonable in the heat of the moment: Local law enforcement, attorney talk excessive vs. reasonable force in policing



From left, Tom Roberson, Brent Swan and Carrie Jourdan

From left, Tom Roberson, Brent Swan and Carrie Jourdan



Isabelle Altman



There is a split second right before a car wreck when the driver has to decide how to avoid a collision. 


That's sort of what police officers go through when they have a only a moment to decide to pull a Taser or a gun, said Lt. Tom Roberson, an investigator with Starkville Police Department. 


"There's that frightening moment that you go, 'What do I do? Do I hit the brakes or do I forward accelerator?'" he said. "... Officers have to make that judgment call, same thing. 'Do I draw my gun or do I reach and grab his hand? Does he have a knife or does he have a phone?'" 


It's the sort of decision law enforcement officers make every day throughout the country: What is the reasonable reaction from the officer, and how much force is excessive? 




Issue hits home 


That question has become the focus of a national conversation on police brutality and excessive force, with particular regard to how officers treat black men. The issue has also made its way to Columbus, with two officer-involved shootings of black men in as many years.  


On Nov. 4, Columbus Police Department patrolman Jared Booth shot and killed 24-year-old Raymond Davis outside a business on 22nd Street. Though the shooting is still under investigation by Mississippi Bureau of Investigation, city officials have said police body camera footage shows Davis holding a weapon. 


Two years before, former CPD officer Canyon Boykin shot and killed 26-year-old Ricky Ball during a traffic stop in October 2015. Following the shooting, Boykin was fired for several offenses, including not having his body camera turned on during the traffic stop. He has been charged with manslaughter and his trial, initially set for Oct. 17 in Walthall County, has been continued. 


In 2016, 963 people were shot and killed by police in the U.S., according to statistics compiled by The Washington Post. The same year, 66 police officers were killed in the line of duty, according to statistics from the FBI. 




Defining reasonableness 


CPD's "Use of Deadly Force Procedure" states an officer "should not discharge a firearm in the line of duty unless all other reasonable alternatives of apprehension have been exhausted and the safety of innocent bystanders is not threatened." It goes on to list specific incidents: when the officer is acting in self-defense or defending someone else, to prevent a crime which would put someone's life in jeopardy or to apprehend a suspect whose crime involved the use of deadly force or whose escape would be a threat to society. 


Those policies are essentially the same policies law enforcement recruits learn at training academies around the country, CPD Capt. Brent Swan said.  


They're based on the "objective reasonableness" standard decided by the 1989 United States Supreme Court case Graham v. Connor, which stated law enforcement officers who use excessive force are in violation of the Fourth Amendment, which protects citizens against unreasonable search and seizure. 


"The standard is a reasonable man standard," said Columbus attorney Carrie Jourdan, who has defended police officers in excessive force cases. "... What would a reasonable person conclude and do in those circumstances?" 


Swan put it another way. 


"If you put 10 officers in the same exact situation with the same amount of training that you've had, with the same build, same suspect ... what would they do?" he said. "Would they react the same way? And that's what the reasonable standard is." 




Internal bias vs. experience 


Many factors go into making that reasonable choice, Swan said -- factors like the time of day, the lighting of an area, whether the area has a crime problem, the suspect's behavior, the size and gender of the suspect, the size and gender of the officer, the number of officers around and how far away back-up is. The more experience an officer has, the faster they'll be able to take those factors into account when making a decision about what kind of force to use, Swan said.  


When race or another innate prejudice becomes one of those factors, it further complicates things, Jourdan said. It's typical for anyone -- not just officers -- to make judgments about people and the dangers they pose based on limited information. For example, Jourdan said, a person walking in public alone in a big city is more likely to cross the street if they see a man walking toward them than if they see a woman, because they perceive the man to be a more likely threat. But when an officer uses that perception to make a call, the consequences can be far more dire.  


Jourdan suggested race is too often a factor officers take into account when they make those decisions, even when the officers do so unconsciously. 


"Are there innate cues and biases and prejudices coloring their perception of the facts?" she said. "For example, a young black male wearing a hoodie: is he automatically perceived as more dangerous (than) a college sorority girl in a tennis outfit? ... And that's what we've got to get police officers to look at. Yes, you should be careful and cautious, but are you automatically jumping to a conclusion that's causing you to make a bad judgment?" 


Roberson disagreed. Though many people, officers included, have innate cultural biases, those are less likely to come into play than whatever experience the officer has in that type of situation. 


"(The decision is) just based on whatever is occurring," he said. "...In my professional opinion, it's not based off a cultural bias or a racial bias." 


Whatever cultural biases do exist, officers address during training, he said, making sure recruits know to go "above and beyond" to treat people with dignity. 


He said it aggravates him when he learns of officers who blatantly go overboard in their use of force -- it makes police everywhere look bad, he said. 


"It enrages me," he said. "... I never, never want someone to feel like I'm there to harm them. I want them always to believe that I'm there to help them."  


Jourdan said officers who can't tell what's a real threat and what's not -- particularly if their perceptions are clouded by racial or other biases -- are in the wrong line of work. 


"If you are incapable of making those judgments because you're so terrified, then you shouldn't be a police officer," she said. "...You ought to know the difference between a surly teenager and somebody who's really dangerous."




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