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Jarmak posted:The thing is breaking department policy is not the same thing as breaking the law. I understand that people's reaction to this is that if it breaks policy how can it be a legal/official/legitimate application of force so it must be a crime, but it doesn't work that way.What constitutes criminal behavior or legally allowable force is the law, which includes statute and case law. Departments can set policies that are more restrictive then what an officer is legally allowed to do, but unless we write into the appropriate statutes that violating department policy voids a justification defense the only means they have to enforce those more restrictive rules are professional consequences. I'm not so sure that law & department policy are so cleanly separated. The choke hold (like pretty much all arrests) was battery. The officers want to establish a defense to battery. The typical defense is that the force was lawful because it was necessary to make an arrest. That only works when the arrest is (1) reasonable, and (2) part of their duties as peace officers. The exact NY Statute is: quote:Justification; generally. I agree that "reasonable" is a question for the courts. But, an officer's "official duties" are defined by their department. If, for instance, the cops had all been on suspension, then their choke hold would have been obviously illegal, even though 'suspension' is a matter of internal department policy. The argument I'd make is that officers 'official duties' are to uphold the law within the confines of their department policies. When officers start doing things that are policy-violating, they should lose their "justification via official duties" defense. The policies define their duties, and they're acting outside of them. This doesn't seem like an especially dangerous slope; those officers would still have all the defenses available to the rest of us.
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Dec 1, 2015 18:21
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Huh, reading further down the page, there's a more explicit bit:quote:Justification; use of physical force in making an arrest or in preventing an escape. This seems to support Jarmak; the statute is about the officer's personal beliefs. I'll have to walk my position back a bit. We ought add an 'in the course of official duties' section to that law.
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Dec 1, 2015 18:32
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twodot posted:Your latest post seems directly on point, but I want to talk about this a bit. We generally want people to be able to figure out whether or not they are committing a crime on their own and quickly. This isn't always possible, but it's a nice goal which is why there's the "reasonably believes" wording in there. It makes sense that something a reasonable person could believe is necessary shouldn't be illegal. When departmental policy controls whether something is criminal or not, knowing whether you're committing crime requires having read and remembered the latest memo. Sometimes this isn't a problem, like you pointed out suspended officers aren't allowed to make arrests (I assume), but there shouldn't be any way for someone to argue they were unaware they were suspended. In other scenarios I can definitely see it being a problem. I agree with your "reasonable belief" addition; I'm sure there are departments where policy is vague. The way I'd like the rules to work would be to modify the justification statute to have a "reasonable belief that force was necessary for the completion of duties," caveat. Then, we'd write the department policy so that "duties" = "enforce the laws, within the department's use-of-force rules." Assuming that the officer was (or should reasonably have been) aware of the "no chokeholds for misdemeanors" rule, we'd say that his decision to make an unsafe arrest for a misdemeanor was obviously outside of policy, and so not part of his job. I'm not too worried about over-criminalization because there'd still be the possibility of justification via self-defense. So my change only matter when (1) officers used too much force (2) they likely knew they were choosing to break policy and (3) weren't in immediate danger when they did it. This change would create a problem in that police officers are incentivized to claim ignorance of department policy. So, if we really wanted to get incentives aligned, I'd give departments a civil duty to train their officers in policy. This way, when an officer claims ignorance, the department needs to either show that their officer was correctly trained, or become civilly liable their mistakes in training.
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Dec 1, 2015 22:19
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Jarmak posted:This is perfectly fair, right now this would be a professional consequence not legal. Is creating a legal duty to provide adequate care a road people are interested in going down? I know when I lived in Italy it was a criminal offense to pass a auto wreck without stopping to render aid so that's kind of the line of thought I'm thinking of. I'd support that duty (and am surprised if it doesn't exist). I'd argue that police officers are in a very different position than passive bystanders. One difference I'd focus on is that, when conducting an arrest, they're actively preventing their suspect from getting aid. I'm ok with a general rule like, "You either leave people free to care for themselves OR accept that burden on yourself." --- In addition, we should treat the use-of-force as continuing until the situation is completely over. So, decisions to mitigate harm (or not) should matter when we're deciding if an officer's force was excessive. As a hypothetical: A police officer makes a misdemeanor arrest. When doing so, the police officer causes the suspect to trip and hit their head. (Assume this is reasonable, if unfortunate). The suspect happens to fall unconscious and rolls, face down, into a shallow puddle of water. The officer watches as the suspect drowns. Is this manslaughter? My argument is that the officer's use-of-force decision was, "trip suspect AND leave their head in water if they happen to fall that way." The tripping wouldn't be lethal force. But the second bit would qualify. And I'd argue that it should.
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Dec 1, 2015 22:38
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Dead Reckoning posted:I think the problem with your hypothetical is that "being face down in a puddle of water" isn't a medical problem, whereas a gunshot wound or difficulty breathing are. I disagree; a blocked airway is as medical as anything else. It happens to be a danger that everyone understands and knows how to mitigate. But that doesn't change a police officers duty (or lack of duty) to mitigate continued injury that's a consequence of their arrest.
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Dec 1, 2015 23:31
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Dead Reckoning posted:Not really. It's the difference between pulling someone out of a fire and treating burn injuries. I agree that there should be a caveat like, "provide aid to mitigate ongoing injuries, within the scope of the person's training." Police aren't EMTs. So, I'd expect them to pull people out of immediate danger, provide simple first-aid to keep severe injuries from getting worse, and call EMTs when necessary. To walk through your shooting case: Let's assume the cops shoot a guy. Suspect ends up handcuffed with a bad leg wound. The leg is bleeding a lot. Suspect stops resisting when handcuffed. I'm saying that police (like everyone else) know that excessive bleeding is dangerous. So, it's obvious that the person is going to receive additional harm by inaction. The rule I'm proposing would only come down on the cops if they end up standing around and watch the guy bleed out. I'd set it up so we'd establish that (1) they reasonably should have known about the danger, (2) they had the ability to mitigate the danger, (3) they choose not to, (4) the person was harmed as a result and (5) the inaction wasn't justified by one of the various defenses to assault.
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Dec 2, 2015 01:41
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Dead Reckoning posted:OK, so let's say that, because he has the equivalent of a Boy Scout's first aid merit badge, the officer applies a bad tourniquet to the leg, and it ends up having to be amputated. Is the officer liable for that? Why would the officer (or anyone else) be liable for providing reasonable first aid? Especially first aid that they're trained to give?
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Dec 2, 2015 02:20
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Dead Reckoning posted:You really think no one ever tries to sue for medical mistakes? People can sue for anything. I'm asking why you'd think the person would a good case. If you press criminal charges, the "justification" defenses kicks in. If you sue, you'll need to overcome Good Samaritan laws AND qualified immunity.
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Dec 2, 2015 02:39
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