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“Guideposts for Assessing Excessive Force,” Defense Research Institute For the Defense


“Guideposts for Assessing Excessive Force,” Defense Research Institute For the Defense

Federal civil rights liability may seem relatively straightforward, but, as Goldberg Segalla’s Shannon T. O’Connor and Jonathan M. Bernstein write in For the Defense, a Defense Research Institute (DRI) publication, injuries from accidental police shootings can complicate the issue. “[A]s a recent appellate decision from the First Circuit involving an accidental police shooting demonstrates, the analysis is not that easy.”

“Generally, federal civil rights liability is based on some intentional act that deprives a person of federally protected rights,” they write. In addition to intentional acts, “accidents or unintentional acts giving rise to liability for some form of personal injury are ordinarily covered under state law principles of negligence.” However, accidental police shootings may fall under Fourth Amendment or the Fourteenth Amendment substantive Due Process Clause — and these have “drastically different” standards. In addition, recent decisions illustrate “splits among the circuits.”

In the article, Shannon and Jonathan explain the constitutional standards and legal doctrines that pertain to accidental police shootings, as well as the ways in which police officer training, rules, and regulations about deadly force are relevant to the reasonableness of an officer’s conduct. The article discusses standards pertaining to “seizure,” offers close readings of relevant decisions, and provides general advice to police officers, supervisors, and trainers to minimize liability — and the risk of injury.

“Police firearm discharges are unequivocally a potential high-stakes liability area for officers, sometimes with tragic consequences, and the situations conceivably can lead to significant community relations issues for police departments and municipalities,” Shannon and Jonathan write. “Training that goes beyond simple tactics is one way to avoid or to minimize exposure to liability and to improve community-police relations. In addition, it can help to acknowledge that anytime an officer draws or displays a weapon, an accidental discharge may result.”

Read the article here: